PASTORI M. BALELE, Complainant
PDQ FOOD STORES INC., Respondent
On December 7, 2012, the complainant filed a complaint with the Equal Employment Opportunities Commission ("EEOC") alleging that the respondent had discriminated against him in employment in a number of respects. That complaint was transmitted by the EEOC to the Wisconsin Equal Rights Division ("ERD") on December 14, 2012. On December 20, 2012, the ERD advised the parties that it would take no action in the matter pending the EEOC's processing of the complaint.
On May 16, 2014, the ERD notified the complainant he should advise the ERD how to wanted to proceed with his case. The complainant wrote back indicating that he wanted the ERD to do an independent investigation of his complaint.
On June 6, 2014, the ERD Civil Rights Bureau section chief, Amy Russell, wrote to the complainant, stating:
The Department will not be able to proceed with the investigation of the above-mentioned matter at this time.
On July 31, 2002, the State Personnel Commission barred you from filing any new discrimination complaints until you fully complied with several circuit court orders requiring you to reimburse the State of Wisconsin for legal costs incurred in defending claims the courts deemed frivolous.
This matter will be placed in abeyance, meaning that it will be held but not investigated at this time. Once you have complied with all of the circuit court orders and have fully reimbursed the State of Wisconsin for legal costs incurred in defending claims the courts deemed frivolous, you may wish to contact us to proceed with the investigation.
On June 13, 2014, the complainant filed a "Petition for Reconsideration" with the ERD, asking it to reconsider its decision in its letter of June 6, 2014 and go forward investigating the complaint. On June 20, 2014, there having been no response to his "Petition for Reconsideration," the complainant filed with the ERD a "Petition for Review," expressly directed to LIRC and seeking its review of the June 6, 2014 decision of Amy Russell. The ERD then advised the parties that a "Petition for Review" had been filed, and it forwarded the case file to the commission.
Under the Wisconsin Fair Employment Act, the power of the Labor and Industry Review Commission is limited to review of "the findings and order of the examiner," see, Wis. Stat. § 111.39 (5). Furthermore, in the rules of the ERD the references to appeals to the Labor and Industry Review Commission all involve appeals of decisions of administrative law judges, see, Wis. Adm. Code § § DWD 218.05(3), DWD 218.06(3)(b), DWD 218.21. Similarly, the reference in LIRC's rules to appeals in Equal Rights cases expressly involves appeal of decisions of administrative law judges, see, Wis. Adm. Code § § LIRC 4.01.
The commission has held that it does not have the authority to consider appeals of actions of ERD employees other than administrative law judges. See, Matthews v. Marc Plaza Hotel, ERD Case No. 8005194 (LIRC, March 31, 1983); Burton v. United Government Services LLC, ERD Case No. CR200303077 (LIRC, November 11, 2011) (LIRC is restricted to review of examiners' findings and orders and does not accept appeals of actions by the ERD's Investigation Bureau).
For these reasons, the commission concludes that it has no legal authority to review the June 6, 2014, decision of Ms. Russell. For that reason, it issues the following:
The complainant's "Petition for Review" is dismissed.
Dated and mailed July 3, 2014
balele_rpr : 110 : 791
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
cc: Attorney Thomas R. Crone
Aff'd, Balele v. LIRC, Dane Co. Cir. Ct., 05/12/2016.
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