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

WENDY OSTLUND, Complainant


ERD Case No. CR200203273, EEOC Case No. 26GA201879

On December 17, 2004, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a Ruling on Motion to Dismiss in the above-captioned matter. The respondent had moved for a dismissal of the matter prior to the hearing on the complainant's complaint of age discrimination for lack of subject matter jurisdiction by the Division, arguing that the proceeding would involve an investigation into a ministerial position with a religious association and would intrude on the respondent's rights under the First Amendment to the U.S. Constitution. After a bifurcated hearing to address the jurisdictional question, the ALJ issued his ruling, concluding that the complainant's position as a first grade teacher was not a ministerial position as that term is used for purposes of considering whether a state adjudication interferes with the free exercise clause of religion under the First Amendment to the U.S. Constitution, that the administrative adjudication of the complaint will not violate the respondent's rights under the First Amendment to the U.S. Constitution and that the ERD has subject matter jurisdiction over this complaint.

Based upon his ruling, the ALJ instructed that the matter be scheduled for a probable cause hearing on whether the respondent violated the WFEA by terminating the complainant's employment because of her age.

On January 7, 2005, the respondent filed a petition for review of Brown's ruling.

As authority for the commission's review of the ALJ's ruling, the respondent has argued as follows:

Under Jocz v. LIRC [196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995)], state agencies confronting the issue of whether a position serves a ministerial or ecclesiastical function must immediately resolve the question before investigating the employment discrimination complaint any further. 196 Wis.2d 273, 301 (1995) (emphasis in original). Answering the subject matter jurisdiction question first will prevent unnecessary governmental entanglement with the religious association's internal affairs. Id. Review of the Administrative Law Judge's Findings of Fact and Conclusions of Law is required at this time in order to avoid the governmental entanglement that constitutes the harm under the First Amendment.

However, the administrative rules governing the procedure of claims of employment discrimination indicate that the ALJ's ruling is not appealable to the commission. Specifically, Wisconsin Administrative Code DWD § 218.21(1) provides as follows:

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 may be appealed. A final decision is one that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division.

(Emphasis added.)

The ALJ's ruling on the respondent's motion to dismiss for lack of subject matter jurisdiction is not a final decision and order. The ALJ's ruling does not dispose of the complainant's complaint; further proceedings are pending on that complaint before the division.

The Labor and Industry Review Commission therefore issues the following:


The commission is not authorized to review the respondent's petition for review and therefore the petition for review must be denied.

Dated and mailed March 3, 2005
ostluwe . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Attorney James G. Birnbaum
Attorney Dawn Marie Harris

Appealed to Circuit Court. Reversed and remanded, October 20, 2005.   [Subsequent LIRC decision on remand]

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uploaded 2005/03/14