State of Wisconsin

Labor and Industry Review Commission

Alfonso G. Kennell	Fair Employment Decision[1]
Complainant
County of Milwaukee
Respondent	Dated and Mailed:
ERD Case No. CR201200908	March 13, 2018
EEOC Case No. 443201200580C	kenneal_rsd.doc:164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that the respondent discriminated against him based upon race, age, disability, and in retaliation for opposing a discriminatory practice, all in violation of the Wisconsin Fair Employment Act (hereinafter “Act”).  An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision finding no probable cause to believe that discrimination occurred.  A timely petition for commission review was filed by the complainant.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing.  Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.

Memorandum Opinion

The complainant’s petition for commission review contains no argument, and the commission has no specific indication as to why the complainant believes he should prevail based upon this record.  Notwithstanding that, the commission has reviewed the administrative law judge’s decision in order to determine whether the findings of fact and conclusions of law made by the administrative law judge are supported.  Based upon its independent review of the record, the commission agrees with the factual findings made by the administrative law judge and with her legal conclusion that the complainant failed to demonstrate probable cause to believe he was discriminated against in the manner alleged. 

The complainant alleged that he was subjected to a variety of adverse actions based upon his age, race, disability, and in retaliation for filing a discrimination complaint.  The evidence established that the complainant was not transferred into a full-time security worker position (which would have afforded him higher compensation) because he did not apply by the deadline.  It was not shown that the complainant’s age or race had anything to do with the matter, nor had he filed his discrimination complaint or otherwise engaged in protected opposition at that point.[2]  The respondent’s subsequent decision to consider disciplinary action against the complainant based upon his poor attendance was also not shown to be related to his protected status.  The complainant introduced no evidence to suggest that younger employees or employees of other races were treated more favorably with respect to their attendance, and the complainant had engaged in no protected opposition to discriminatory practices at the time the disciplinary process began.  While the respondent became aware that the complainant had filed a complaint of some nature with the EEOC during the second disciplinary meeting convened with regard to his attendance, it was not shown that the conduct the complainant alleges to be discriminatory--his suspension and removal from county property--was related to that fact.  Rather, the evidence indicates that the respondent took the action it did because the complainant engaged in conduct during the meeting which the respondent reasonably regarded as threatening.  There is no reason to believe that the respondent was motivated to suspend the complainant’s employment or remove him from the premises because it learned he had filed an EEOC complaint, nor was it shown that the complainant would have been treated differently had he been younger or of a different race.

NOTE: The respondent makes the argument that by failing to identify the legal issues that form the basis for his petition and failing to provide legal authority for his petition, the complainant has waived all legal issues.  The respondent further contends that, by failing to present any issues that provide a “reasonable basis in law or equity,” the complainant’s appeal is frivolous and was brought in bad faith.  These contentions are rejected.  While chapter 227 of the statutes requires that petitions for review by a circuit court must include the grounds upon which the petitioner contends the decision should be reversed or modified, the Wisconsin Fair Employment Act does not contain any specific requirements for a petition for commission review beyond that the petition must be filed in writing.  See, Wis. Stat. §§ 111.39(5)(a) and 227.53(1)(b).  A petition for review which simply states, “I appeal,” can clearly be understood as a request for review of the administrative law judge’s decision, and nothing more specific need be included to trigger a general review of the matter by the commission.  The respondent’s argument that such an appeal is frivolous or was filed in bad faith is unsupported by any citation to legal authority and misapprehends the nature and purpose of an administrative appeal, which is meant to provide a streamlined and accessible process separate from a judicial review.

cc:	Attorney Molly J. Zillig

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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] While the complainant also contended that he was discriminated against based upon disability, he failed to present sufficient evidence to establish that he is an individual with a disability, within the meaning of the Act, or that the respondent perceived him as having a disability.  Consequently, there can be no finding that the complainant was discriminated against on that basis.