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

GLORIA RING, Complainant

MIDWEST DIRECTORIES, INC. and DARRELL KRAMER, Respondents

FAIR EMPLOYMENT DECISION
ERD Case No. 9200911, EEOC Case No. 26G920857

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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: January 26, 1996
ringglo.rsd : 110 :

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

This case arises out of a complaint of discrimination Gloria Ring filed against Midwest Directories, Inc. ("Midwest") and its President, Darrell Kramer, in connection with the termination of her relationship with Midwest. The Administrative Law Judge found that the respondents had not violated the Fair Employment Act and ordered the complaint dismissed. Both parties petitioned for commission review.

Ring's petition for commission review in this matter did not specifically challenge any of the procedural and evidentiary rulings made by the administrative law judge, nor did it challenge any specific findings of fact as being unsupported by the record, nor did it specifically assert whether and why any conclusions of law were claimed to be in error. Furthermore, Ring filed no Brief. (1) Thus, the commission has no specific indication of why the Ring believes she should prevail on this record or what she may believe was erroneously decided by the administrative law judge.

The commission has concluded that the findings of fact and conclusions of law made by the administrative law judge are supported. In addition, a critical question in this case was the credibility of Ring's testimony, in particular her assertions that the sexual conduct of Hlavachek was unwelcome, and the administrative law judge's decision makes it quite clear that he did not find Ring's testimony credible. The commission has found no compelling reason in the record to disagree with the administrative law judge's credibility determination, and it agrees with him that this assessment of Ring's credibility is largely dispositive of her claims. For these reasons, it adopts the administrative law judge's decision as its own.

Respondents have argued at great length that the administrative law judge erred in a number of respects, and should have made findings that Ring was not its employe and also ordered that she pay respondents' attorneys fees. The commission finds none of these arguments persuasive.

The commission will not address the respondents' arguments concerning whether Ring was an employe or an independent contractor. Because of the findings and conclusions that there was nothing that would constitute unlawful employment discrimination, deciding that there was not an employment relationship would not affect the outcome. Any discussion of that question here would be superfluous. While there may be cases in which it is appropriate to address issues which are in effect rendered moot by the resolution of other questions in the case, the commission does not believe that this is such a case.

The respondents' arguments concerning attorneys fees are most appropriately responded to by reference to the statement in respondents' brief that "the Commission is bound by the Wisconsin Court of Appeals decision in Tatum v. LIRC, 132 Wis.2d 411, 392 N.W.2d 849 (Ct. App. 1986), which refused to award attorneys fees to a defendant that prevails against a frivolous claim in a DILHR proceeding under the WFEA or Section 814.025". Because the commission agrees with this, it will not address the other arguments raised by respondents in an effort to establish the proposition that Ring's position in this matter was frivolous. Again, it would be superfluous to do so, because under the controlling Tatum decision, it does not matter.

The commission agrees with and adopts the administrative law judge's explanation for not addressing other arguments raised by respondents. Again, resolving these arguments would not change the outcome of the case.

cc:
Charles W. Pautsch, et al., Attorneys for Respondents

Appealed to Circuit Court (by Respondents, on attorney's fee issue). Affirmed October 8, 1996.  Circuit Court decision affirmed by Court of Appeals in unpublished summary affirmance, December 23, 1997.

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Footnotes:

(1)( Back ) The commission notes that Ring's counsel withdrew after the petition for review was filed.