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

MITCH DOMINI, Complainant


ERD Case No. CR200201825

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed February 24, 2005
dominmi . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


The complainant could prevail here if he proved any of the following:

(1) He filed a prevailing wage complaint with the Equal Rights Division (ERD) and the respondent had reason to be aware of this filing.
(2) He otherwise attempted to enforce a prevailing wage right by invoking the authority of the ERD, and the respondent had reason to be aware of this.
(3) He testified or assisted in any prevailing wage action or proceeding.
(4) Schultz, the alleged retaliator, believed that the complainant had engaged in, or may engage in, (1), (2), or (3).

It is undisputed that the complainant is not claiming that he testified or assisted in a proceeding within the meaning of (3), above, or that he filed an ERD complaint within the meaning of (1), above. The commission agrees with the administrative law judge that his contact with ERD qualified as an attempt to invoke the authority of ERD, within the meaning of (2), above, but that the record does not support a conclusion that Schultz would have had any reason to be aware of this contact.

The only remaining question then is whether Schultz believed that the complainant engaged in, or may engage in, any of these activities.

The record does not support a conclusion that Schultz had such a belief, particularly since, at the time he terminated the complainant, the complainant accepted Schultz's representation that he had paid him what he owed him, i.e., Schultz would have had no reason to believe that the complainant would pursue any further prevailing wage claim against him. Although the complainant testified that he told Schultz during their January 9 conversation that he had worked an additional day at the Overture site for which he had not received the prevailing wage rate, he also testified that he accepted without argument Schultz's representation that his work on that additional day did not qualify as work for the Overture Project. This would not support a conclusion, particularly given the complainant's prior resort to supplying the respondent with supporting information from the general contractor rather than to filing an ERD complaint, that Schultz would have had reason to believe that the complainant would file an ERD complaint relating to this additional day's work.

It is clear that the complainant was terminated for informally pursuing with Schultz his contention that he had been improperly denied the prevailing wage rate for his work on the Overture Project.  However, this type of activity is "oppositional" rather than "participatory."  In Roncaglione v. Peterson Builders, Inc., ERD Case No. 9111425 (LIRC Aug. 11, 1993), and Pampuch v. Bally's Vic Tanny Health and Racquetball Club, ERD Claim Nos. 9350083, 9253152 (LIRC March 7, 1994), and their progeny, the commission clarified that Wis. Stat. § 111.322(2m), by its terms, applies only to formal participatory activities, not informal oppositional ones.

Although the result here could appear to be unjust in a broad sense, the commission is not a court of equity, but instead a legislative creation which lacks the authority to disregard a statutory scheme in order to achieve what it may perceive to be a more equitable result.

Attorney Bruce M. Davey
Attorney Richard C. Glesner

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uploaded 2005/02/28