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


MICHELE MARIE BORDEAU, Complainant

EMMERICH AND ASSOCIATES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199704515


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.

DECISION

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

Dated and mailed: April 13, 1998
bordemi.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that her complaint should not be dismissed because Wis. Stat. § 46.90(4)(a)1. states that "Any person may report to the county agency. . . .," using the word "may" rather than "shall." This argument fails. The use of the word "may" rather than "shall" in the statute suggests that filing a report of suspected abuse is discretionary, but cannot reasonably be interpreted to mean that reports of abuse may be made to an entity other than the county agency while conferring the protections contained in subsection (b)1. of the statute upon the person making the report.

The complainant also argues that Wis. Stat. § 46.90(4)(b)2.b. provides that "any employe . . . who is discharged or otherwise discriminated against may file a complaint," but does not contain any condition that a report must be made first. This, too, is without merit. While subsection (b)2.b. of the statute contains no specific reference to filing a report with the county agency, that section is not meant to be taken in isolation, but is to be read in conjunction with the rest of Wis. Stat. § 46.90(4). When the statute is read as a whole, rather than dissected in the manner the complainant suggests, it is not only clear that a report is contemplated, but that the report is to be made to the designated county agency.

Next, the complainant maintains that Wis. Stat. § 46.90(4) does not limit the reporting of suspected abuse to the county agency, since Wis. Stat. § 46.90(5) provides that the county agency shall either investigate the report or refer it to another agency for investigation. Again, this argument fails. The fact that the county agency has discretion to decide how to process the complaint once it is received does not mean that the person filing the complaint has discretion to bypass the county agency, particularly if she intends to claim the protections against discrimination contained in the statute.

Finally, the complainant argues that there was already an investigation in progress when she got involved and that she should not be expected to go back and report to the county agency when the seriousness of the allegations necessitated the involvement of law enforcement. However, the commission must reiterate that, under the plain language of the statute, a person can only qualify for the protection of Wis. Stat. § 46.90(4)(b)1. when she makes a report to the county agency as specified in § 46.90(4)(a)1. of that statute. While the complainant may have felt that she had valid reasons to bypass the designated agency and file her complaint elsewhere, for the reasons set forth above, her actions are simply not protected under the Elder Abuse Reporting System. Accordingly, the dismissal of the complainant's discrimination complaint must be affirmed.

cc: Sharon M. Gisselman


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