ERD Case No. 8823572, EEOC Case No. 055842687

On May 30, 1990, an Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision denying the Respondent's motion to dismiss the complaint in. the above-captioned matter pursuant to the doctrine of res judicata. On June 12, 1990, the ALJ denied the Respondent's request for reconsideration of the matter, but "allow(ed) Respondent to take an interlocutory appeal to the Labor and Industry Review Commission on the res judicata issue." Subsequently, on June 18, 1990, the Respondent filed a petition with the Department seeking Commission review and reversal of the ALJ's order denying its motion to dismiss the Complainant's complaint on res judicata grounds. ( * )

Having considered the Respondent's petition request, the Labor and Industry Review Commission hereby issues the following


The Respondent's request for Commission review of the Administrative Law Judge's order denying its motion to dismiss is denied.

Dated and mailed September 11, 1990

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


The Respondent seeks Commission review of an Administrative Law Judge's interim or nonfinal decision denying its motion to dismiss the Complainant's complaint based on the doctrine of res judicata. Further proceedings on the Complainant's complaint are scheduled to take place before the Administrative Law Judge. The Respondent urges the Commission to accept its petition of the ALJ's nonfinal decision, arguing that the purposes of the res judicata doctrine can be realized only when the doctrine is applied before a full trial is held, that the ALJ decided its motion to dismiss without addressing the substance of its res judicata defense, and further, that the Respondent's res judicata defense is based on an earlier Commission decision in Maguire v. Marquette (LIRC 8/18/88), which mandates dismissal of the instant case.

However, notwithstanding the apparent meritoriousness of the Respondent's arguments, the Commission finds that it must decline to accept the Respondent's petition. The Commission has repeatedly held that it will not accept petitions for review of nonfinal ALJ decisions. See for example, Helen M. Lonetree v. Ho-Chunk Bingo (LIRC 8/18/89); Vega v. The Larsen Co. (LIRC 7/3/85). If the Commission's policy were otherwise, the Equal Rights Division's ability to schedule and complete hearings on complaints of alleged discrimination would be an exercise in futility. The Division's ability to reach a final decision in cases would become the exception rather than the rule. Hearings before the Division would be constantly interrupted and shifted back and forth between the Division, the Commission, and possibly even the courts. While the Commission recognizes that much time and expense might possibly be saved if the Commission were to accept and decide petitions of nonfinal decisions, the Commission believes that this consideration is outweighed by the resultant delay that would accompany Commission review of nonfinal decisions and the disruption of the orderly process of adjudicating cases before the Division.

The Respondent has further argued that this case presents "compelling circumstances" for Commission review and suggests that, consistent with appellate procedure in the courts, which recognize judicial exceptions to the usual statutory requirement of a "final" decision prior to appeal, the Commission should accept an interlocutory petition when "compelling circumstances" are presented for such appeal. However two points can be quickly noted here. First of all, using this as a measure for review would also likely result in a huge number of petitions of nonfinal ALJ decisions. For example, a respondent could, and undoubtedly would, file a motion to dismiss on some ground as a matter of course in nearly every case before the Division, thus making all such cases potentially appealable to the Commission. Many of such cases, of course, would not present any compelling circumstances for Commission review. The point is, however, that the Commission would have to expend time to review each claim to determine whether "compelling circumstances" actually existed. Secondly, and more importantly, in order for the Commission to assess the merits of each particular case, the matter would have to be transferred from the Division to the Commission thereby disrupting the orderly processing of cases before the Division. It is easy to envision how only a small number of appeals of nonfinal decisions would create an enormous disruption of the adjudication of cases before the Division.

Accordingly, for all of the above reasons the Commission finds that it must decline to accept the Respondent's petition for review of the ALJ's nonfinal order.


Kenneth R. Loebel
Susan R. Maisa

[Subsequent decision in this case]

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(*)( Back ) While the ALJ has purportedly granted Respondent "authorization" to bring this petition to the Commission, the Commission wishes to note that it is not within the province of the ALJ to authorize petitions to the Commission.


uploaded 2004/07/13