Wis.LIRC ER Decision: Prior, Kathleen - May 27, 2005 - Procedure - who may file appeal of ALJ's decision with LIRC - statute provides that any respondent or complainant dissatisfied with 'the findings and order' of ALJ may petition - order in respondent's favor but it petitioned, objecting to certain findings - no authority restricting right to petition to parties who object to findings and order

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

KATHLEEN PRIOR, Complainant

COUNTY OF PORTAGE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200300258, EEOC Case No. 26GA300563

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 conclusions in that decision as its own, except that it makes the following modification:

Paragraphs 2, 4 and 5 of the CONCLUSIONS OF LAW are deleted. Those conclusions, which pertain to the complainant's claims of disability discrimination, are deleted because the complainant agreed at the start of the hearing that she was no longer pursuing her claims of disability discrimination.

DECISION

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

Dated and mailed May 27, 2005
priorka . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: In a letter the commission received from the complainant on May 19, 2005, she asserts that she is the only one who could have filed an appeal because Wis. Stat. s. 111.39(5)(a) states that "anyone who disagrees with 'the findings and order' of an examiner may file an appeal." (Emphasis in original.) The complainant asserts that the County does not disagree with "both the findings and order," and that she is the only party dissatisfied with the "findings and order." She asserts that "Since I have not filed for an appeal, there is nothing for you to consider." However, the complainant has cited no authority for such a restrictive reading of this statute and the commission is aware of no such authority. The commission also notes that paragraph 6 of the ALJ's conclusions of law states that "[t]here is no probable cause to believe Portage County terminated Prior's employment, constructively or otherwise, in retaliation for her opposition to a discriminatory practice within the meaning of the Wisconsin Fair Employment Act." (Emphasis added.) Actually, the issue noticed for hearing was whether there was probable cause to believe the respondent had discharged the complainant because she had made a complaint under the Act. However, there has been no objection to, or request for a modification of this conclusion of law.

cc:
Attorney Mark A. Sauer
Attorney Jenifer D. Binder

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uploaded 2005/05/31