Wis.LIRC ER Decision: Ericson, Brenda - March 1, 2001 - Procedure - LIRC review - ALJ's decisions need to be sufficiently complete so as to allow for LIRC review -- LIRC must be able to determine from ALJ's decision whether result reached was related to ALJ's decision that the facts were not shown to be as alleged by the complainant, or whether it is based upon ALJ's interpretation of the law - sufficient finsings required regarding employer's motivation

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRENDA M ERICSON, Complainant

MOLONEYS FOOD & SPIRITS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199800460,

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed. For the reasons set forth in the memorandum opinion, the commission makes the following:

ORDER

That the administrative law judge's decision of June 30, 2000, relating to the above-captioned matter, be set aside and a new decision issued with respect to the merits of the case.

Dated and mailed March 1, 2001
ericsbr . rpr : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission's review of this matter was hampered by the fact that many of the administrative law judge's findings of fact are not supported by the record. For example, and most notably, the record contains no evidence to support the administrative law judge's finding in paragraph #10 that the complainant was told she would be fired if she filed a wage claim. (1 ) The commission also can find nothing in the record to support the finding in paragraph #8 that on October 24 the complainant's supervisor called to tell her that employees would have to wait to be paid, or the finding in paragraph #9 that the complainant had an argument with her supervisor about her wages. The commission additionally notes that, although the administrative law judge made an ultimate finding of fact that the complainant was discharged as a result of participation in "the walkout," the decision contains no affirmative finding that a walkout occurred or what the extent of the complainant's participation in that walkout might have been.

In addition to the errors and omissions in the findings of fact referred to above, the commission notes that the administrative law judge's decision contains insufficient findings with respect to the respondent's motivation for discharging the complainant. Absent such findings, the commission is unable to make any legal conclusion that discrimination did or did not occur as alleged. While, as noted above, the administrative law judge found that the complainant was discharged as a result of participation in a walkout, there is nothing in the decision specifying whether or not the lack of a bartender's license was a factor in her discharge nor what, if any, role her threat to file a wage complaint played in the discharge. Given that the crux of the complainant's complaint was that she was discharged as a result of her threat to file a wage claim, a specific finding on this point is required.

Finally, whether or not the administrative law judge concludes that discrimination occurred, his decision should make clear the rationale for such a finding. It is extremely difficult for the commission to review a decision in which it cannot determine whether the result reached by the administrative law judge is related to a conclusion that the facts were not shown to be as alleged by the complainant or whether it is based upon an interpretation of the law.

The commission has, therefore, remanded this matter to the administrative law judge for the drafting of a new decision with findings of fact that are based on the record created at the hearing and which are sufficiently complete so as to be ready for review by the commission should the parties so desire. The administrative law judge's decision should also clearly set forth the rationale for a finding in the complainant's favor or, in the alternative, for the dismissal of her complaint.

cc:
Robert C. Welcenbach
Michael O. Bohren

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uploaded 2001/03/21

Footnotes:

(1)( Back ) While the commission recognizes that this might be the result of an error or omission in the synopsis, the fact that the complainant's own brief, which is written by an attorney, contains no reference to the remark in question is a strong indicator that no such evidence was presented.