P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SHAWN R. WOODFORD, Complainant


ERD Case No. 199704340, EEOC Case No. 26G980199

This matter is before the commission on a request that it accept an appeal of a Decision affirming a Preliminary Determination And Order.

The initial complaint in this matter was filed with the Equal Rights Division on October 27, 1997. On February 4, 1999, two documents were issued by the ERD:

1) A Preliminary Determination And Order dismissing some allegations of the complaint on the grounds that they were barred by the statute of limitations; and

2) An Initial Determination finding no probable cause as to other allegations.

The Complainant filed appeals of both of these determinations.

The appeal of the Preliminary Determination And Order which dismissed some allegations of the complaint was assigned to Administrative Law Judge Larry Jakubowski. On May 7, 1999, ALJ Jakubowski issued a Decision affirming the Preliminary Determination And Order.

The appeal of the Initial Determination finding no probable cause as to the other allegations was assigned to Administrative Law Judge John Brown. On November 11, 1999, ALJ Brown issued an Order remanding the part of the complaint which was before him to allow for the filing of an Amended Complaint. An Amended Complaint was subsequently filed, its allegations were investigated, and on July 23, 2000, an Initial Determination was issued which found probable cause as to some allegations of the Amended Complaint and no probable cause as to other allegations. The allegations as to which probable cause were found are now ready for hearing on the merits. (1)

When ALJ Jakubowski's May 7, 1999, Decision affirming the Preliminary Determination And Order was issued, it was accompanied by a notice which stated, in relevant part:

The Administrative Law Judge's decision to affirm the dismissal of part of the complaint may be appealed to the Labor & Industry Review Commission, but only after the Equal Rights Division has issued a final decision on the entire case. You will be sent a notice of appeal rights when a final decision on the entire complaint is issued.

Notwithstanding this, on March 15, 2001, Complainant filed with the ERD what he denominated a "Contingent Withdrawal," which among other things requested that the commission accept an appeal of ALJ Jakubowski's decision. The "Contingent Withdrawal" stated that if the commission accepted the appeal, and if it then affirmed ALJ Jakubowski's decision, then "at such point as that affirmance becomes final, either because there is no appeal made to court or because all court appeals have been exhausted," the Complainant would withdraw his complaint as to all pending issues in the case, including those awaiting hearing on the merits following the Initial Determination of probable cause. The "Contingent Withdrawal" also stated that if the commission accepted the appeal of Jakubowski's decision and reversed it, then the withdrawal would not take effect. Respondent has indicated that it does not object to the "Contingent Withdrawal."

The "Contingent Withdrawal" stated that the Complainant made the request that the commission accept his appeal of ALJ Jakubowski's Decision in an attempt to minimize the chance that the parties would need to have multiple hearings to resolve the complaint.

The commission understands and appreciates the desirability of attempting to avoid situations in which different resolution of issues raised by a single complaint create the need for multiple hearings. However, the commission's decision on whether it will accept an appeal of ALJ Jakubowski's decision cannot be based on its assessment of what would be the desirable procedural pathway for this case. The situation here presents an issue that is addressed squarely by, and must be resolved consistently with, the rules of the Equal Rights Division.

Wis. Admin. Code DWD 218.05 (3) sets out the procedure by which Preliminary Determinations issued under DWD 218.05 (2) may be appealed to an administrative law judge who will then issue a decision on them. It provides:

If the decision [by the administrative law judge] affirms the preliminary determination, it shall 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).

(emphasis added). Wis. Admin. Code DWD 218.21 (1) in turn 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 added).

Under DWD 218.21 (1), ALJ Jakubowski's Decision Affirming the Preliminary Determination And Order was unquestionably not a "final decision" in this case. While various rulings have had the effect of disposing of some of the issues raised by the complaint in this matter, that does not change the fact that other issues presented by the complaint are still awaiting resolution. The complaint which was filed in this matter is still pending before the ERD, with further proceedings contemplated.

Furthermore, the fact that the "Contingent Withdrawal" holds out some possibility that those other issues might at some point be dropped, does not justify pretending that the entire complaint is somehow "disposed of." The "Contingent Withdrawal" is contingent not only on the commission accepting the appeal and affirming ALJ Jakubowski's decision, but also on the commission decision then becoming final either because there is no appeal made to court or because all court appeals have been exhausted. In effect, the Complainant has reserved control over whether the contingency will ever occur. It is understandable that Complainant wishes to reserve the right to appeal any decision the commission might issue; but what this means is that there is in fact no certainty that there will be a withdrawal even if the commission accepts the appeal. In these circumstances, indulging a fiction that the "Contingent Withdrawal" somehow substitutes for or is equivalent to the entire complaint having been disposed of, is particularly artificial.

The commission has considered the fact that the Respondent indicated that it does not object to the "Contingent Withdrawal," but it has concluded that this fact can be given no weight. The commission's authority may not be expanded by stipulation of the parties. See, Welhouse v. Ind. Comm., 214 Wis. 163, 165, 252 N.W.717 (1934) ("A party cannot confer jurisdiction by consent where the power to act is involved."). The commission is not an arbitration panel which is available to rule on any issue which two parties agree to submit to it.

For the reasons given above, the commission concludes that ALJ Jakubowski's May 7, 1999 Decision Affirming the Preliminary Determination And Order is not a "final decision" under DWD 218.21 (1), and for that reason the commission can not and will not accept an appeal of it at this time. The file in this matter is therefore returned herewith to the Equal Rights Division.

Dated and mailed May 11, 2001
woodfsh . rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


While the provisions of DWD 218.05 (3) and DWD 218.21 (1) are entirely dispositive of the Complainant's request, the commission wishes to note that it believes that the outcome required by the rules is the preferable one for a number of policy reasons as well.

Complainant's desire to avoid a situation in which different issues raised by a complaint become procedurally separated and thus require separate hearings, is understandable. However, the possibility that this can happen is unfortunately always present, given the steps that complaints pass through and the fact that multiple allegations can be and frequently are incorporated into a single complaint. (2) While there is a cost imposed on the parties by a procedural scheme that creates this potential for multiple hearings, there is also a cost imposed by going too far to try to avoid multiple hearings. That cost is the delay which results when issues which are ripe for hearing and decision are required to stand and wait while appeals are pursued on other issues.

In this case, the delay could be very significant. Even if the commission were to take the appeal, if it decided that the issues had not been timely raised in the complaint (and thus affirmed ALJ Jakubowski's decision), according to the terms of the "Contingent Withdrawal" the Complainant could still appeal the commission's decision up to and through the courts. Furthermore, even if there were eventually a final decision at one of those levels that the issues had been timely raised in the complaint, the matter could not immediately go to hearing because the issues preliminarily dismissed in this case were never subjected to an investigation and there has been no probable cause decision as to them. Through all of this, the issues as to which there was a finding of probable cause almost a year ago -- and which were contained in a complaint filed in 1997 -- would be sitting on a side track waiting for the rest of the train to catch up.

The commission's decision not to take this appeal is thus not only required by DWD 218.05 (3) and DWD 218.21 (1), but is also a preferable course because it balances the risk of multiple hearings against the risk of undue delay in the disposition of the entire case.

NOTE: While it is not a factor in the decision it has arrived at not to accept the appeal in this matter, the commission wishes to observe that the present procedural posture of this case can be seen as a byproduct of a practice of the ERD which is arguably inconsistent with its own rules.

Wis. Admin. Code Ch. DWD 218.05, "Preliminary Review Of Complaints," provides that the department shall review every complaint filed to determine whether the complainant is protected by the act, whether the respondent is subject to the act, whether the complaint states a claim for relief under the act, and whether the complaint was filed within the time period set forth in the act (if that issue is raised in writing by the respondent). The rule also provides that "the department shall issue a preliminary determination dismissing any complaint which fails to meet [those] requirements" (emphasis added).

If a complaint contains some allegations that satisfy the requirements described in DWD 218.05, it would clearly be improper to dismiss the entire complaint just because it also contains some allegations that do not satisfy those requirements. However, DWD 218.05 authorizes only one type of action, and it is precisely that: dismissing the entire complaint. It does not speak of dismissing individual allegations which do not meet those requirements. By contrast, DWD 218.07 (3), which relates to Initial Determinations finding no probable cause, does expressly provide for dismissing individual allegations of a complaint. That this is provided for expressly in one section of the rules is reason to question whether it is fair to treat it as being implied in another section of the rules, a section that seems, by its express terms, to involve only the situation of dismissing an entire complaint.

An alternative way of handling complaints which contain both legally viable allegations and legally inadequate ones, would be to submit them to the normal probable cause/no probable cause investigation process and to issue an Initial Determination finding "no probable cause" as to the legally inadequate allegations (with reference to their legal problems as the rationale for the "no probable cause" decision). That would result in a more conventional form of "split decision," one the ERD has rules and procedures in place to deal with. It would also appear to comport better with the language of the rules.

Attorney Veronica Isherwood
Attorney Peter Kastenholz

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(1)( Back ) The Complainant initially filed an appeal of that portion of the July 23, 2000, Initial Determination which found no probable cause as to certain allegations, but that appeal was subsequently withdrawn, and those allegations are no longer at issue.

(2)( Back ) Most commonly, "splits" can arise in the regular investigation process, in which the result may be an Initial Determination that finds probable cause as to some allegations of a complaint and no probable cause as to others. See, DWD 218.07. The "no probable cause" portion of such Initial Determinations may be immediately appealed and taken to hearing before an administrative law judge -- but if the administrative law judge's decision affirms the finding of no probable cause, the ERD's rules do not allow appeal of such decisions to LIRC so long as proceedings are still pending before the ERD on other issues raised by that complaint (as to which probable cause was found) and there has thus been no final disposition on the entire complaint. See, DWD 218.20 (2).

uploaded 2001/05/14