ALVIN C. HENDERSON, Complainant
STATE OF WISCONSIN
DEPARTMENT OF CORRECTIONS, Respondent
Facts -- This case arises out of a complaint alleging that respondent Wisconsin Department of Corrections discriminated against complainant Alvin C. Henderson in violation of the Wisconsin Fair Employment Act.
After a lengthy procedural history culminating in a hearing on the merits held on November 6, 2007 and April 1, 2008, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision on November 6, 2008. This decision contained Findings of Fact, Conclusions of Law, and an Order which dismissed the case.
On November 28, 2008, the Equal Rights Division received, via facsimile transmission, (1) a "Notice Of Motion And Motion For Determination Of Frivolity And For An Award Of Fees And Costs", with supporting argument and affidavits, filed by the respondent. This motion, which stated that it was brought pursuant to Wis. Stat. § 227.483, asked the Equal Rights Division to determine that the complainant had filed a frivolous complaint and to order payment of respondent's reasonable actual attorney fees and costs.
Prior to the filing of its motion on November 28, 2008, respondent had never made any request to the ALJ that he make a determination that the complainant had commenced or continued a frivolous claim, and its motion did not assert or argue that the ALJ had erred in failing to make such a determination in his decision. Indeed, respondent's motion did not express any dissatisfaction with the ALJ's November 6, 2008 decision, in any respect. The respondent's motion did not ask that the ALJ's decision be modified in any way; the motion was limited to asking that the ERD "determine" that the case was frivolous and that it "award" or "assess" fees and costs. § 227.483.
On December 2, 2008, the Equal Rights Division received a letter from counsel for the complainant, objecting to respondent's motion on the grounds that it was untimely as a request for a determination under § 227.483 and that it could not be treated as a petition for commission review of the ALJ's November 6 decision.
On December 3, 2008, the ALJ responded by way of a letter to the parties' counsel, in which he stated:
I received the Respondent's Motion for Determination of Frivolity on November 28, 2008, and the Complainant's response dated December 1, 2008. I note that the appeal period after the decision in this matter ended on November 27, 2008, so the decision in this matter is final and the case concluded.
The Equal Rights Division's authority under sec. 227.483, Stats. is limited by the phrase in that provision, "at any time during the proceeding, . . ." The proceeding, including all possible appeals, is over. Therefore, the Respondent's Motion must be denied because the Division lacks jurisdiction over the motion since it was not made "at any time during the proceeding."
The ALJ erred in concluding that the period for appealing his November 6 decision had expired on November 27. Although the 21st day after November 6, 2008 was November 27, 2008, that day was Thanksgiving, so that by operation of law (see, Wis. Stat. § 990.001(4)(b), Wis. Admin. Code § LIRC 1.02(6)), the last day to timely file a petition for review was the next following business day, Friday, November 28.
On December 17, 2008, the Equal Rights Division received a document from respondent styled "Respondent's Petition for Review of ALJ Determination of Untimeliness." This document did not express any dissatisfaction with the ALJ's November 6, 2008 decision, in any respect, and it did not ask that the ALJ's November 6, 2008 decision be reviewed or be modified in any way. It was limited to asking that LIRC review the December 3, 2008 "determination" of the ALJ that Respondent's Motion For Determination Of Frivolity and for Fees was untimely.
On December 29, 2008, counsel for complainant filed a letter objecting to respondent's "petition for review" on the grounds that it was untimely as either a request for a determination under § 227.483 or as a petition for review of the ALJ's November 6, 2008 decision.
The Equal Rights Division then forwarded the entire file to the commission.
Discussion - The threshold question presented by this situation is whether the commission has any authority to act at all in this case.
The WFEA provides the following with respect to appeal of ALJs' decisions to the commission:
111.39 Powers and duties of department. Except as provided under s. 111.375(2), the department shall have the following powers and duties in carrying out this subchapter:
. . .
(4)(c) If, after hearing, the examiner finds that the respondent has engaged in discrimination, unfair honesty testing or unfair genetic testing, the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay...
(d) The department shall serve a certified copy of the findings and order on the respondent, the order to have the same force as other orders of the department and be enforced as provided in s. 103.005. Any person aggrieved by noncompliance with the order may have the order enforced specifically by suit in equity. If the examiner finds that the respondent has not engaged in discrimination, unfair honesty testing or unfair genetic testing as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant together with an order dismissing the complaint.
(5)(a) Any respondent or complainant who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order.
(b) If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the last-known address of the respondent the findings and order shall be considered final for purposes of enforcement under sub. (4)(d). If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings. Such actions shall be based on a review of the evidence submitted. If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.
The "findings and order" contemplated by those sections is the final decision of an ALJ in a case which either orders a remedy for any discrimination found or dismisses the complaint. Thus, the commission has held, "the right of commission review is implicitly limited to review of Administrative Law Judges' written decisions and their actual Orders ("findings and order," in the language of sec. 111.39(5), Stats.)". Nagy v. Fox Valley Tech. & Baldi (LIRC, November 22, 1995).
In Nagy, the ALJ issued an order dismissing a complaint based on a written request for withdrawal of the complaint which had been filed with the indication that withdrawal was requested because of a private settlement between the parties. Within the 21-day appeal period after the issuance of the ALJ's dismissal order, the complainant then filed a letter with the ERD stating that it was a "petition for review" and asking for review of the ALJ's handling of the hearing. From this, as well as other correspondence, it was apparent that the complainant was not objecting to the dismissal of the complaint, and was not seeking commission review of that dismissal order, but was instead objecting to certain conduct by the ALJ during the proceedings which culminated in the parties' settlement and asking for review of that conduct by the ALJ.
The commission dismissed the petition, stating:
Where a party is not even asking the commission to review or make any changes in the written findings and Order issued by the Administrative Law Judge, but only to make what amounts to an advisory pronouncement that something the Administrative Law Judge did before issuing that decision was improper, there is simply no basis on which the commission may act.
See also, Wright v. Computer People Unlimited (LIRC, March 28, 1995), in which a writing filed with the ERD within the 21-day appeal period after issuance of an ALJ's final decision on the complaint was found not to have constituted a petition for commission review of the ALJ's decision where it was clear from its content and context that it had not been intended as such.
Thus, in both Wright and Nagy the commission found that writings filed with the ERD after the issuance of an ALJ's decision, although they concerned the case, should not have been considered to have been petitions for commission review. Nagy makes clear that the test for determining whether a writing filed with the ERD after the issuance of an ALJ's decision is a petition for commission review, has to do with its intent and purpose, specifically, whether it expresses dissatisfaction with the ALJ's findings and order and asks for review of or changes in the finding and order. It also makes it clear that the commission's authority extends only to conducting review of final decisions of ALJs where an actual petition for review of such a final decision has been timely filed.
In this case, the commission concludes, there was never a petition for review filed which would give the commission any authority to act.
The first document filed by the respondent after the issuance of the ALJ's November 6 decision, that being the "Notice Of Motion And Motion For Determination Of Frivolity And For An Award Of Fees And Costs" filed by the respondent on November 28, 2008, was not a "petition . . . for review by the commission of the findings and order" of the ALJ, within the meaning of Wis. Stat. § 111.39(5). That motion did not indicate that the respondent was "dissatisfied with the findings and order" of the ALJ, as described in § 111.39(5)(a), and it did not request "review by the commission of the findings and order" of the ALJ within the meaning of that section. On the contrary, as is discussed above, it is clear that the respondent was not dissatisfied with the ALJ's November 6, 2008 decision, and that it did not want that decision reviewed or changed, but that it was instead asking for the issuance of a new and separate ruling on another matter, a matter which up to that point had never been placed before the ALJ and which the ALJ had not addressed.
The second document filed by the respondent after the issuance of the ALJ's November 6 decision, was the writing it filed with the Equal Rights Division on December 17, 2008. While the respondent styled it a "petition for review," this characterization of the document by the respondent does not control the question of whether it was in fact a "petition for review" within the meaning of Wis. Stat. § 111.39(5)(a), sufficient to give the commission the authority to act. The commission concludes that it was not.
As noted above, the commission has held that its authority to conduct review, which has its source in Wis. Stat. § 111.39(5), is limited to review of the "findings and order" of ALJs, which are the final decision of an ALJ in a case which either finds discrimination and orders a remedy therefor or dismisses the complaint. The document filed by the respondent with the Equal Rights Division on December 17, 2008, was specifically and exclusively a request for review of the ALJ's letter of December 3, 2008. That letter, though, cannot be considered to have been "findings and order" of an ALJ within the meaning of Wis. Stat. § 111.39(4) and (5). The letter did not have the essential attribute of "findings and order" of an ALJ within the meaning of § 111.39(4)(and 5), that it either find discrimination and order a remedy therefor or dismisses the complaint. It did neither of those things. The ALJ had already issued his "findings and order" in the case on November 6, 2008.
For all of the foregoing reasons, the commission concludes that it has no authority to review the ALJ's findings and order of November 6, 2008, because no timely petition for commission review of those findings and order was ever filed. It further concludes that it has no authority to act on the respondent's "Petition For Review Of ALJ Determination Of Untimeliness," because it was not a petition for review of the findings and order of an ALJ. The commission therefore makes the following:
Respondent's "Petition For Review Of ALJ Determination Of Untimeliness" is dismissed.
Dated and mailed March 19, 2009
henders . rpr : 110 :
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: Ultimately, the commission resolves this case on the narrow basis that it has no authority to act because there is before it no timely petition for review of an ALJ's final "findings and order" in a case within the meaning of Wis. Stat. § 111.39. However, it recognizes that the case raises broader questions as when, in the course of a proceeding under the Wisconsin Fair Employment Act, a party may or must request a finding and award under § 227.483, and when an ALJ may or must act on such a request, in order for the issue to be effectively resolved and to be potentially subject to review by the commission. Believing that it would be beneficial to have these broader questions resolved, it offers the following observations.
Wis. Stat. § 227.483 provides:
227.483 Costs upon frivolous claims. (1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.
(2) If the costs and fees awarded under sub. (1) are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.
(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:
(a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
(b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
Unlike Wis. Stat. § 227.485, to which it has some parallels, § 227.483 does not explicitly address the question of exactly when during a case a party may or must make a motion for a finding and when the examiner may or must make a ruling on such a motion. However, some matters of timing are implicit in the fact that the statute authorizes a hearing examiner to make a finding under the statute "at any time during the proceeding." From the fact that a finding of frivolousness may be made "at any time" during a proceeding, it is implicit that a party does not have to wait until the end of the proceeding. More significantly, from the fact that the examiner's frivolousness finding must be made "during the proceeding" it is implicit that a party must request such a finding prior to the end of the proceedings before the hearing examiner. This is obviously so, since after the proceedings have ended, the examiner will not be able to make a finding under this section "during the proceeding."
Other considerations relevant to the timing question arise from limitations implicit in the Wisconsin Fair Employment Act. The authority of the commission extends only to review of an ALJ's final "findings and orders" in a case within the meaning of Wis. Stat. § 111.39. From this it is clear that the only way in which the commission can review a ruling by an ALJ under § 227.483 is in the course of conducting a review of an ALJ's final "findings and order" in a case, when the "findings and order" includes such a ruling.
Given these considerations, the answers to the broader questions presented by this case are clear. A party who wishes to have a ruling on a request for a finding of frivolousness and an award of costs and fees under § 227.483, must necessarily make such a request before the ALJ issues his or her final findings and order in the case. The ALJ 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 commission through the filing of a petition for commission review of the ALJ's findings and order as contemplated by § 111.39(5).
Attorney Kathryn R. Anderson
Attorney Richard F. Rice
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(1)( Back ) Filing of papers by facsimile transmission is permitted under the rules of practice of the Equal Rights Division. Wis. Admin. Code � DWD 218.25.