MICHAEL L. SIGL, Complainant

VILLAGE OF BLACK CREEK, Respondent

A complaint was filed in this matter on September 7, 2011. On May 24, 2012 the Equal Rights Division issued a Preliminary Determination And Order pursuant to Wis. Adm. Code § DWD 218.05, which dismissed the complaint. The complainant filed an appeal. On October 2, 2012, an ALJ issued an "Order From Appeal Of Preliminary Determination," which set aside the Preliminary Determination and remanded the matter for issuance of an Initial Determination as to probable cause. On October 22, 2012, the respondent filed a petition for review of the ALJ's decision. The Division then forwarded the file to the commission.

Wis. Adm. Code § DWD 218.05 provides:

(3) Appeal of preliminary determination. The complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. . . . The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the preliminary determination. The department shall serve the decision of the administrative law judge upon the parties. If the decision reverses or sets aside the preliminary determination, the complaint shall be remanded for investigation. If the decision affirms the preliminary determination, it may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21 (1).

Wis. Adm. Code § DWD 218.21 (1) provides:

DWD 218.21 Petition For Review By The Labor And Industry Review Commission.

(1) APPEALS LIMITED TO FINAL DECISIONS AND ORDERS. Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission. Only final decisions and orders of the administrative law judge are appealable. A final decision is one which disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division.

(emphasis supplied) The ALJ's "Order From Appeal Of Preliminary Determination" was a "decision which . . . set aside the preliminary determination" within the meaning of Wis. Adm. Code § DWD 218.05(3). The prescribed outcome in such cases, is that the complaint "shall" be remanded for investigation, and that is what the ALJ ordered. The decision thus did not dispose of the complaint, and it left further proceedings pending before the ERD. As such, the ALJ's decision was clearly not a final decision and order as defined by Wis. Adm. Code § DWD 218.21 (1). It was therefore not appealable to the commission. The fact that the Division issued the ALJ's decision with its standard "Notice Of Appeal Rights" page, is irrelevant. That action cannot create rights which do not exist under the law.

For the reasons given above, the commission issues the following:

The petition for review is dismissed.

Dated and mailed October 31, 2012
siglmic . rrr : 110 :

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc:
Michael F. Brown, Attorney for the Complainant
Geoffrey A. Lacy, Attorney for the Respondent

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