State of Wisconsin

Labor and Industry Review Commission

John Ford	Fair Employment Decision
Complainant
Briggs & Stratton, Corp.
Respondent	Dated and Mailed:
ERD Case No. CR201700522	April 19, 2018
EEOC Case No. 26G201700598C	fordjo_rsd.doc:164

The complainant’s petition for commission review is dismissed.  Accordingly, this matter is returned to the Equal Rights Division for further proceedings. 

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

Procedural History

On February 17, 2017, the complainant filed a complaint with the Equal Rights Division (hereinafter “ERD”) of the Department of Workforce Development alleging that he was discriminated against based upon a disability and in retaliation for having filed a prior discrimination complaint.  On April 11, 2017, the respondent submitted a position statement to the ERD in which it contended that some of the complainant’s allegations were untimely.  On August 15, 2017, an equal rights officer for the ERD issued a preliminary determination finding that the complainant’s allegations that he was discriminated against in the terms and conditions of his employment based on disability were untimely, having occurred more than 300 days prior to the filing of his complaint.  Those allegations were, therefore, dismissed.  In a separate determination issued on the same day, the equal rights officer found no probable cause to believe that discrimination had occurred with regard to the complainant’s allegations that the respondent gave him poor references in retaliation for having engaged in prior protected conduct and because of his disability.  Both the preliminary determination pertaining to the statute of limitations and the initial determination finding no probable cause related to the same underlying complaint of discrimination and bore the same case number.  On August 21, 2017, the complainant filed a single timely appeal of both determinations. 

Department records indicate that, on October 10, 2107, the matter was assigned to an administrative law judge for consideration of the appeal of the preliminary determination.  The appeal of the no probable cause determination was not certified to hearing and no action was taken by the ERD with respect to that matter.  On December 21, 2017, the administrative law judge issued a “Decision and Order on Appeal of Preliminary Determination” in which she affirmed the preliminary determination dismissing the complainant’s allegations of discrimination with respect to the terms and conditions of his employment.  In her decision the administrative law judge made reference to the fact that the complainant had appealed both the preliminary determination and the no probable cause determination.  However, having concluded that the preliminary determination should be affirmed, the administrative law judge’s decision contained no further discussion of the complainant’s appeal of the no probable cause determination and made no reference to what, if any, additional proceedings would occur with respect to that aspect of his complaint.

The administrative law judge’s decision was accompanied by a “Notice of Appeal Rights” which indicated that the decision was a final one and that the complainant could petition for commission review of the decision within 21 days.  The complainant filed a timely petition for commission review of the administrative law judge’s decision pursuant to those instructions.

Memorandum Opinion

The Department of Workforce Development’s rules set out the procedure by which preliminary determinations may be appealed.  Wis. Admin. Code § DWD 218.05(3) provides, in relevant part:

If a timely appeal [of the preliminary determination] is filed. . . .   The matter shall be referred to the hearing section of the division for review by an administrative law judge.  The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the preliminary determination. . . .  If the decision affirms the preliminary determination, it shall be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21(1).  (emphasis added).

Wis. Admin. Code § DWD 218.21(1), referenced above, provides:

(1) APPEALS LIMITED TO FINAL DECISIONS AND ORDERS.  Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission.  Only final decisions and orders of the administrative law judge are appealable. A final decision is one which disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division. (emphasis added).

The administrative law judge’s Decision and Order on Appeal of Preliminary Determination issued in this matter was clearly not a “final decision,” as that term is defined in Wis. Admin. Code § DWD 218.21(1).  While the decision disposed of some of the issues raised in the complaint--those related to the terms and conditions of the complainant’s employment--the issues related to the allegations that the respondent gave the complainant unfavorable job references are still awaiting resolution by the ERD.[1]  Because the administrative law judge’s decision is not a final decision, but is still pending before the ERD, it is not appealable to the commission at this time.[2]

For the reasons set forth above, the commission is unable to accept the complainant’s appeal.  The matter is returned to the ERD so that it can process the complainant’s appeal of the no probable cause determination.  Once a final decision has been issued by the ERD with respect to that portion of the complaint that was not dismissed as untimely, the complainant will have an opportunity to file a petition for review by the commission of the entire matter.

cc:	Attorney Suzanne Glisch

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[1] Once the complainant filed his timely appeal of the no probable cause initial determination issued by the equal rights officer, the matter should have been certified for hearing and the case assigned to an administrative law judge.  See, Wis. Admin. Code § DWD 218.08(3).  Department records indicate that, as of the date of this decision, the matter had not yet been certified to hearing.

[2] The fact that the administrative law judge’s decision was accompanied by a Notice of Appeal Rights which erroneously indicated that the decision could be appealed in 21 days does not affect the resolution of this matter.  Sigl v. Village of Black Creek, ERD Case No. CR201102969 (LIRC Oct. 31, 2012).