Wis.LIRC ER Decision: Balele, Pastori M. - June 13, 2018 - 791 - LIRC does not have authority to consider appeals of actions of ERD employees other than ALJs because its authority is limited to review of ALJs' findings and orders under sec. 111.39(5); therefore, PCR is not a substitute for department review of actions of ERD employees other than ALJs. 112.9 - Complainant was and still is subject to filing ban under 2002 Wis. Personnel Commission (WPC) decision prohibiting filing new complaints with ERD under WFEA against specific state agencies until complainant satisfies outstanding circuit court judgments listed in WPC decision; complainant failed to provide substantial evidence to show he paid all outstanding judgments to the state. 711 - Statute of Limitations- Complainant time barred because complaint filings fell well outside 300-day statute of limitations under sec. 111.39(1). 119.2 - Issue Preclusion- federal district court ruling granting summary judgment to respondent had issue preclusion effect on complaint filings with ERD as they rested on the same allegations as those disposed of in federal court; these same issues were actually litigated and determined and were essential to the judgment; and meet the fundamental fairness requirements.

State of Wisconsin

Labor and Industry Review Commission


Pastori M. Balele	Fair Employment Decision[1]
Complainant	Fair Employment Decision[1]

State of Wisconsin Department of Corrections
Respondent	Dated and Mailed:

ERD Case No. CR201700277 EEOC Case No. 26G201700492C ERD Case No.CR201700278,
EEOC Case No.26G201700494C ERD Case No.CR201400225 EEOC Case No. 443201301513C	June 13, 2018

The ALJ's decisions in ERD Case Nos. CR201700277 and 201700278 are affirmed. Accordingly, the complaints filed in ERD Case Nos. CR201700277 and 201700278 are dismissed, with prejudice. The petition for review in ERD Case No. CR201400225 is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson


	/s/
	Laurie R. McCallum, Commissioner

	/s/
	David B. Falstad, Commissioner

Procedural History

ERD Case Nos. CR201700277 and CR201700278

On January 27, 2017, complainant filed two separate complaints with the Equal Rights Division of the Department of Workforce Development ("ERD") alleging that respondent violated the Wisconsin Fair Employment Act, Wis. Stat. §§ 111.31-111.395 ("WFEA") by discriminating against him in hiring because of his race, sex, and color, because he filed a previous discrimination complaint with ERD, and because he opposed discrimination in the workplace. All of the alleged discriminatory actions occurred in 2011 and 2014.

The complaint in ERD Case No. CR201700278 is a photocopy of a complaint originally submitted by complainant to ERD on November 8, 2011. The complaint alleged that he was discriminated against between January and July, 2011, due to respondent's rejection of complainant for three positions: Contract Specialist-Advanced; Purchasing Agent Management Supervisor; and Correctional Services Treatment Director - Office of Program Services. ERD declined to accept the 2011 complaint and, on December 6, 2011, returned it to complainant, explaining that he remained barred from filing certain WFEA claims pursuant to a 2002 Wisconsin Personnel Commission ruling.

The complaint in ERD Case No. CR201700277 is a photocopy of a complaint submitted by complainant and received by ERD on May 12, 2014. That complaint alleged that respondent discriminated against complainant between February and May, 2014, by rejecting another application he had submitted for the position of Contract Specialist-Advanced. Like the earlier 2011 complaint, the original 2014 complaint was never accepted by ERD. Rather, a notation was entered on the complaint that it was "mailed back 6-9-14," and ERD returned the complaint to complainant by letter on that date, again citing the 2002 Wisconsin Personnel Commission decision.

The ruling referenced in ERD's letters rejecting complainant's attempted 2011 and 2014 filings is a July 31, 2002, Wisconsin Personnel Commission decision in Balele v. DOA, et al., Case Nos. 01-0067-PC-ER, 01-0103-PC-ER, 01-0112-PC-ER, 01-0122-PC-ER, 02-0008-PC-ER, and 02-0034-PC-ER (the "2002 WPC Ruling"). The 2002 WPC Ruling bars complainant from filing any new complaints under the WFEA against certain state agencies, including respondent Department of Corrections, until complainant paid all monies due the State of Wisconsin arising from the following three Dane County Circuit Court proceedings: Balele v. Wis. Pers. Comm., et al., Case No. 00-CV-2876 ($500 owed); State of Wisconsin v. Balele, Case No. 00-CV-2776 ($1,114.91 owed); and Balele v. Wis. Pers. Comm., et al., Case No. 01-CV-1182 ($500 owed). In each of its two letters to complainant rejecting his attempt to file the 2011 and 2014 complaints against respondent, ERD stated that it "will not accept any complaints from you until you prove that you have satisfied the court judgments" and "[n]o further action will be taken on the charges you recently sent us." Complainant never sought review of either the 2011 or 2014 decision letters.

Resubmitting his 2011 and 2014 complaints on January 27, 2017, complainant acknowledged that both of the earlier complaints had been previously submitted and rejected by ERD, and that it was also related to "a similar case in the Federal district court."[2] With regard to the resubmitted complaint in ERD Case No. CR201700278, complainant asserted that "[t]his is the right time to re-litigate my case in ERD."

Unlike the earlier complaints, ERD received each of the re-filed complaints in ERD Case Nos. CR201700277 and CR201700278, and commenced an investigation. On April 18, 2017, an equal rights officer issued a Preliminary Determination and Order ("PDO") in each case, finding that "[t]he Division has since [the earlier rejection of his complaints by ERD] been made aware that Complainant has satisfied his debt to the State of Wisconsin, and now finds that he is no longer barred from filing complaints under the Wisconsin Fair Employment Act. The Division accepted Complainant's complaint on February 9, 2017." PDOs ¶ IV.D. The evidence (and source thereof) on which the equal rights officer relied in determining that complainant had satisfied the debts referenced in the 2002 WPC Ruling is unclear. Nevertheless, the equal rights officer found that ERD's earlier rejections of his complaints were proper since "Complainant was provided an opportunity to submit proof that he had satisfied all relevant debts and was no longer barred from submitting complaints. Had he done so, he could have resubmitted his complaint in a timely manner and it would have been processed accordingly. Complainant failed to do this. As such, Complainant's initial date of inquiry is officially January 27, 2017." PDOs ¶ V.A. Consequently, the equal rights officer found that the allegations contained in the complaints - arising in 2011 and 2014 - fell outside the 300-day limitations period preceding the January 27, 2017, filing date, and dismissed the two complaints. PDOs ¶ V.C.

Complainant filed timely appeals of the PDOs on April 24, 2017, and the cases were assigned to an administrative law judge ("ALJ"). On or about August 14, 2017, the ALJ sent a letter to complainant in each case, providing him with an opportunity to demonstrate that he had satisfied the debts referenced in the 2002 WPC Ruling when he originally attempted to file his complaints, or at any time thereafter. Complainant responded with various communications and documents that were considered by the ALJ.

On October 6, 2017, the ALJ issued her Decision and Order on Appeal of Dismissal in each of the cases ("Decision & Order") dismissing the complaints with prejudice, finding that complainant had failed to (i) provide proof that he had paid his debts to the State of Wisconsin as required by the 2002 WPC Ruling, and (ii) present any such evidence to ERD at the time the original complaints were rejected. Decision & Orders at 2-3, n.1-2. Absent satisfying both of these conditions, the ALJ found that ERD was justified in rejecting the original complaints in 2011 and 2014, and there was consequently no basis for tolling the statute of limitations. As a result, the ALJ affirmed the PDOs' conclusions that the January 27, 2017, filings were time-barred under Wis. Stat. § 111.39(1) for failing to be filed within 300 days of the alleged discrimination. In doing so, the ALJ also deleted the PDOs' findings that "The Division has since been made aware that Complainant has satisfied his debt to the State of Wisconsin, and now finds that he is no longer barred from filing complaints under the Wisconsin Fair Employment Act" in light of complainant's failure to provide any sufficient proof that he had in fact satisfied the debts referenced in the 2002 WPC Ruling, either at the time he attempted to file the original complaints or at any time thereafter, and because the "Investigator provided no reference to nor documentation of how or where he drew the conclusion that [complainant's] complaints were no longer barred or that he had paid his debt." Decision & Orders at 2-3.

On October 19, 2017, complainant filed petitions for commission review of the ALJ's Decision & Orders.

ERD Case No. CR201400225

Complainant filed Charge No. 443201301513 with the federal Equal Employment Opportunity Commission ("EEOC") on September 6, 2013, alleging discrimination by respondent that occurred in 2011 and 2013. The charge was cross-filed with ERD, which received a copy of the complaint on September 24, 2013. Because the charge was initially presented to EEOC and then filed with ERD, EEOC processed the complaint first under the work sharing agreement between the two agencies. In this complaint, complainant alleged that respondent discriminated against him by refusing to hire him for five vacant positions in November 2011,[3] and three additional positions in 2013, because of his race, color, and sex, and in retaliation for having engaged in protected activities.

On September 13, 2013, EEOC issued a Notice of Right to Sue, notifying complainant that EEOC was terminating its processing of his charge and that he had the right to sue under Title VII of the Civil Rights Act of 1964, 42 USC §§ 2000e et seq. ("Title VII"). On October 8, 2013, complainant filed a discrimination claim against respondent and certain other named defendants in Dane County Circuit Court, attempting to allege various causes of action under both state and federal

law, including claims of unlawful discrimination under 29 USC § 1983 and (apparently) Title VII.[4] Defendants removed the case to federal court.[5]

Much like it had with the original complaints at issue in ERD Case Nos. CR201700277 and CR201700278, ERD sent complainant a letter on June 26, 2014, stating that ERD would not proceed with any investigation of his complaint in ERD Case No. CR201400225 in light of the 2002 WPC Ruling barring complainant "from filing any new discrimination complaints until [he] fully complied with several circuit court orders requiring [him] to reimburse the State of Wisconsin for legal costs incurred in defending claims the courts deemed frivolous." Complainant never sought review of ERD's June 26, 2014, letter.

In the meantime, complainant's discrimination claim proceeded in federal district court. The particular discrimination claims alleged and reviewed by the federal court in Olmanson were: (1) an application and interview for a contracts specialist-advanced in 2011; (2) three job applications and interviews for correctional services management positions in 2013; and (3) an application and interview as a contracts specialist-advanced in 2014.

The Olmanson defendants filed a motion for summary judgment and, on August 13, 2015, the federal district court ruled that complainant failed to present evidence sufficient to raise a genuine dispute of material fact regarding the alleged acts of discrimination. Specifically, the court concluded that: (1) respondent rebutted complainant's prima facie case of discrimination by showing legitimate, non-discriminatory reasons for not hiring complainant and that complainant did not show that these reasons were pretextual; (2) complainant presented no direct or circumstantial evidence that would give rise to an inference that respondent's decisions not to hire complainant were motivated by discriminatory animus; and (3) complainant failed to establish that the interview process had a disparate and adverse impact on African American applicants. Consequently, the court granted the defendants' motion for summary judgment. Balele v. Olmanson, et al., Case No. 13-CV-783, 2015 U.S. Dist. LEXIS 106494, 2015 WL 4774107 (W.D. Wis. Aug 13, 2015).[6]

Although ERD had not investigated or issued any decision in ERD Case No. CR201400225 since the issuance of the June 26, 2014, letter, complainant filed a petition for commission review on October 19, 2017, in conjunction with his petitions filed in ERD Case Nos. CR201700277 and CR201700278.

Memorandum Opinion

Complainant's petition for review asks the commission to remand these three cases back to ERD so that he can continue to pursue his discrimination claims against respondent for hiring decisions made in 2011, 2013 and 2014. In order to consider this request, the commission must first assess whether it has jurisdiction to consider complainant's appeal in ERD Case No. CR201400225. Then, the commission must determine whether any of the complaints are: (1) barred pursuant to the 2002 WPC Ruling; (2) untimely under Wis. Stat. § 111.39(1); and/or (3) barred under the doctrine of issue preclusion.

Commission's Jurisdiction to Review ERD Case No. CR201400225

As described in the Procedural History, ERD's processing of the complaint in ERD Case No. CR201400225 was confined to performing an intake review of the complaint and determining that complainant was not entitled to file the complaint pursuant to the 2002 WPC Ruling. ERD advised complainant of its determination in a June 26, 2014, letter. Complainant did nothing in response for more than three years until he added a petition for review of ERD Case No. CR201400225 to his petitions for review of the ALJ's Decision & Orders in Case Nos. CR201700277 and CR201700278.

Although not denominated as such, ERD's June 26, 2014, letter decision is essentially a preliminary determination dismissing the complaint as described in Wis. Admin. Code § DWD 218.05(2). Wisconsin Admin. Code § 218.05(3) provides that a "complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department... within 20 days of the date of the order."

Complainant is well aware that a petition for commission review is not a substitute for departmental review of the decisions of ERD's investigation bureau. In Balele v. PDQ Food Stores Inc., ERD Case No. CR201203887 (LIRC July 3, 2014), complainant similarly attempted to petition the commission for review of ERD's refusal to process his complaint since he had not yet complied with the terms of the 2002 WPC Ruling. Citing Matthews v. Marc Plaza Hotel, ERD Case No. 8005194 (LIRC March 31, 1983), and Burton v. United Government Services LLC, ERD Case No. CR200303077 (LIRC Nov. 11, 2011), the commission concluded that its authority under the WFEA is limited, pursuant to Wis. Stat. § 111.39(5), to reviewing the findings and orders of ERD's administrative law judges, and not the decision of ERD investigators or other employees. Consequently, the commission held that it was without authority to entertain complainant's petition and dismissed it. This case is no different, and complainant's petition for review in ERD Case No. CR201400225 is dismissed.

The 2002 WPC Ruling

In each of the Decision & Orders in ERD Case Nos. CR201700277 and CR201700278, the ALJ found that the January 27, 2017, re-filings of complainant's 2011 and 2014 complaints were time-barred pursuant to Wis. Stat. § 111.39(1). In particular, the ALJ rejected complainant's argument that the original attempts at filing his complaints were improperly denied by ERD and, therefore, should have tolled the statute of limitations. Rather, the ALJ found that the original complaints were properly rejected by the ERD as being barred under the 2002 WPC Ruling.

While the commission will review the ALJ's statute of limitations analysis below, we find that this analysis leapfrogged a more fundamental infirmity applicable to all of the complaints at issue in this matter - including the original complaints from 2011 and 2014, as well the 2017 re-filing of those complaints in ERD Case Nos. CR201700277 and CR201700278 - namely, that complainant was and still is subject to the filing ban imposed under the 2002 WPC Ruling.

As an initial matter, the commission again notes that ERD's rejections of the initial complaint filed in 2011 (subsequently refiled in 2017 in ERD Case No. CR201700278), and the initial complaint submitted in 2014 (subsequently refiled in 2017 in ERD Case No. CR201700277), as barred by the 2002 WPC Ruling were never timely appealed after ERD notified complainant of those rejections and, therefore, are not reviewable in this proceeding. As with the complaint filed in ERD Case No. CR201400225, ERD notified complainant that it was rejecting his 2011 and 2014 filings pursuant to the 2002 WPC Ruling and that it would not be further investigating or otherwise processing his complaint, and yet complainant failed to timely protest those decisions to the department. To allow complainant to challenge as part of these petitions those decisions holding that the complaints were barred by the 2002 WPC Ruling would amount to a collateral attack on the department's determinations of the type that, as described in the previous section, is not allowed due to the limited authority of the commission and/or complainant's failure to timely challenge the decision with the department.

Consequently, the commission declines to review ERD's refusal to permit the original filings of the 2011 and 2014 complaints as precluded by the 2002 WPC ruling. Alternatively, even if it were to review the merits of these decisions, the commission would affirm them on the same basis relied on by the ALJ in her Decision & Orders, and for the same reasons it finds the refiled complaints barred by the 2002 WPC ruling.

As the ALJ noted in the Decision & Orders in ERD Case Nos. CR201700277 and CR201700278, ERD was warranted in rejecting complainant's 2011 and 2014 filings since he had failed to provide ERD with timely proof that he had satisfied those judgments required under the 2002 WPC ruling at the time of those filings and when requested by ERD.[7] Whether he had paid those judgments or not, it was incumbent upon complainant under the 2002 WPC Ruling to establish that he had done so as a condition precedent to his filing any further WFEA claims against those state agencies named in the 2002 WPC Ruling, including respondent Department of Corrections. His failure to timely offer any such proof means ERD's rejection of the 2011 and 2014 complaints must be sustained.

The same can be said of the status of complainant's debt as of the time of the Decision & Orders in ERD Case Nos. CR201700277 and CR201700278. Prior to her ruling on complainant's appeal of the PDOs dismissing his refiled complaints, the ALJ solicited from complainant "any and all evidence that you have that, as of May 2014 (or any time thereafter), you had fully complied with the [2002 WPC Ruling] to reimburse the State of Wisconsin for legal costs incurred in defending claims the court deemed frivolous." The only arguably relevant evidence complainant offered in response was a letter that complainant received in 2004 from one of the credit reporting agencies, noting that a private employer had made an inquiry into complainant's credit history. Accompanying the letter was a listing of "public record information contained on your credit file and provided to the company listed above as a result of their inquiry." Ignoring for a moment the inherent unreliability of his proffered evidence,[8] none of the information provided established that the three debts listed in the 2002 WPC Ruling had been paid.[9] In fact, one of the outstanding liabilities listed by the credit reporting company was a debt to the State of Wisconsin, in "Case No. CV2776," in the amount $1,114.00, strongly suggesting that, at a minimum, the $1,114.91 owed in State of Wisconsin v. Balele, Dane Cty. Cir. Ct. Case No. 00-CV-2776 and ordered to be repaid under the 2002 WPC Ruling, was still outstanding. Like the original attempts to file the complaints in 2011 and 2014, the record fails to establish at the time of the ALJ's Decision & Orders that complainant had complied with his obligations to satisfy certain debts. Therefore his refiled complaints in ERD Case Nos. CR201700277 and CR201700278 were barred by the 2002 WPC Ruling, and the Decisions & Orders dismissing the complaints are affirmed on that basis.^{^[10]}

Stringing together a concoction of legal theories such as issue preclusion and law of the case, complainant's only real argument in his petition for review in support of reversing the Decision & Orders is that ERD is forever bound to the conclusion of the equal rights officer in his PDOs that ERD "has since been made aware that Complainant has satisfied his debt to the State of Wisconsin, and now finds that he is no longer barred from filing complaints under the Wisconsin Fair Employment Act," and that the ALJ acted outside the scope of her authority in reversing that finding.[11] Complainant is wrong. First, the doctrines of issue preclusion and law of the case have no application in the context of a direct appeal of a lower authority's decision. It is axiomatic that a higher authority can reverse the erroneous determinations of a lower authority; that is exactly the purpose of an appeal. Second, the issue that complainant is arguing - that he had indeed paid off the debts referenced in the 2002 WPC Ruling - is a question of fact that can only be sustained on appeal by either the ALJ or the commission if there is substantial evidence in the record to support it. As the ALJ noted in her Decision & Orders, "The Investigator provided no reference to nor documentation of how or where he drew the conclusion that [complainant's] complaints were no longer barred or that he had paid his debt." It remains a mystery what evidence the equal rights officer could have possibly relied on since a review of the record as of the date of the PDOs discloses no evidence to suggest that complainant had satisfied those debts referenced in the 2002 WPC Ruling.[12] As described above, the additional documents that complainant offered subsequent to the PDOs have similarly failed to present substantial evidence that complainant had, in fact, paid off his debts, and the commission affirms the ALJ's deletion/reversal of that finding from the PDOs.

Finally, while the commission will not accept and review new evidence offered by the parties after the ALJ closed the record,[13] it will acknowledge those admissions that the parties make in their submissions to the commission. In that regard, it is worth noting that complainant submitted with his petition for review a promissory note, "promis[ing] to pay $1,114 to the State of Wisconsin which claims I should have paid toward the Personnel Commission's year 2002 judgments," and included a $100 check to the State as the first installment on that debt. Obviously, as a factual matter the promissory note is immaterial - simply reaffirming the obligation to pay is not the satisfaction of the debt as required by the 2002 WPC Ruling - but it is an acknowledgement by complainant that at least the $1,114.91 debt arising out of Dane Cty. Cir. Ct. Case No. 00-CV-2776 remained unpaid as of the filing of the petition on October 19, 2017.

For all the foregoing reasons, the commission affirms the Decision & Orders' dismissal of each and every one of the complaints referenced above because he has failed to provide any substantial evidence to show that he had paid off all his debts to the State arising from Balele v. Wis. Pers. Comm., et al., Dane Cty. Cir. Ct. Case No. 00-CV-2876 ($500 owed); State of Wisconsin v. Balele, Dane Cty. Cir. Ct. Case No. 00-CV-2776 ($1,114.91 owed); and Balele v. Wis. Pers. Comm., et al., Dane Cty. Cir. Ct. Case No. 01-CV-1182 ($500 owed), the satisfaction of which was a condition precedent to him filing a WFEA claim against respondent pursuant to the 2002 WPC Ruling.

Time Limits Under Wis. Stat. § 111.39(1)

Even if the refiled complaints in ERD Case Nos. CR201700277 and CR201700278 were not barred from being filed under the 2002 WPC ruling, they are time barred under Wis. Stat. § 111.39(1). Pursuant to Wis. Stat. § 111.39(1), the department is authorized to receive and investigate complaints charging discrimination "if the complaint is filed with the department no more than 300 days after the alleged discrimination ... occurred." Timeliness depends on whether the complaint is filed within 300 days of the occurrence of the allegedly discriminatory act. Through statutory construction, that period of time has been interpreted to be a statute of limitations. County of Milwaukee v. LIRC, 113 Wis.2d 199, 205, 335 N.W.2d 412 (Ct. App. 1983).

All of the discriminatory conduct alleged in ERD Case Nos. CR201700277 and CR201700278 occurred no later than 2014. Therefore, on their face the 2017 filings fall well outside the 300-day statute of limitations under Wis. Stat. § 111.39(1) and should be dismissed.

As he did before the ALJ, complainant argues in his petition for review that the complaints he refiled in ERD Case Nos. CR201700278 and CR201700277 were improperly rejected by ERD in 2011 and 2014, respectively, and therefore the 300-day time limit for filing under Wis. Stat. § 111.39(1) should be tolled. The commission rejects complainant's argument regarding the propriety of ERD's rejection of the original complaints for the same reasons as set forth in the preceding section. Complainant's arguments amount to a collateral attack on ERD's rejections in 2011 and 2014 of his original attempts to file the complaints and the commission will not revisit those decisions given its limited authority and complainant's failure to timely challenge the decision with the department. Alternatively, the ALJ was correct in concluding that complainant had failed to present - even as of the date of the Decision & Orders - any substantial evidence that he had paid the debts required under the 2002 WPC Ruling by the time he originally attempted to file the complaints in 2011 and 2014, or that he presented any such evidence to ERD at the time that he first attempted to file the complaints and ERD rejected them pursuant to the 2002 WPC Ruling. Consequently, there is no basis for concluding that ERD erred in rejecting the original complaints, and no basis for tolling the statute of limitations. As a result, January 27, 2017, remains the operative filing date for assessing the timeliness of the complaints in ERD Case Nos. CR201700277 and CR201700278. Since those complaints were not filed within 300 days of the allegedly discriminatory conduct, the complaints were appropriately dismissed pursuant to Wis. Stat. § 111.39(1).

Issue Preclusion

Finally, respondent asserts that even if complainant is successful in avoiding dismissal of his several complaints under the various procedural issues addressed above, the complaints should be barred under the doctrine of issue preclusion in light of the federal court decision in Olmanson. Issue preclusion applies to prevent a complainant from relitigating before ERD a set of alleged discriminatory acts after those allegations have already been rejected by a court, including a federal court granting summary judgment to respondent. See, Aldrich v. LIRC, et al., 2012 WI 53, 341 Wis.2d 36, 814 N.W.2d 433; Williams v. Milwaukee Health Services, ERD Case No. CR201203453 (LIRC Oct. 20, 2015); Balele v. PDQ Food Stores Inc., ERD Case No. CR201203887 (LIRC June 18, 2015) and Banty v. Dings Co. Magnetic Group, ERD Case Nos. CR200803382, CR200903205 (LIRC, July 31, 2012).

When he submitted his complaints in ERD Case Nos. CR201700277 and CR201700278, complainant noted that "[t]his is the right time to re-litigate my case in ERD." The relitigation of previously resolved matters is exactly what issue preclusion prevents. Yet it should be noted that while issue preclusion does apply, claims preclusion does not as a WFEA claim of any type could not have been joined with the court action initiated by complainant and removed to federal court. As a result, respondent's argument that any "complaint" should be dismissed is too broad. Rather, issue preclusion would apply to bar the relitigation of any of the individual allegations of discrimination that were dismissed in Olmanson.

As noted in the Procedural History above, Olmanson arose out of the EEOC charge that was also cross-filed as ERD Case No. CR201400225, so its most immediate impact would seem to be on the allegations contained in that complaint. However, while each of the complaints provide at best a rather vague and summary set of allegations, there also appears to be a substantial amount of duplication in the allegations (to the extent they can be discerned) among the various complaints that complainant has filed. Complainant would be barred from relitigating any and all of the specific acts of discrimination that were disposed of in Olmanson, regardless whether they are alleged in ERD Case No. CR201400225, or in the complaints filed in ERD Case Nos. CR201700277 or CR201700278. Thus, to the extent any of the complaints assert claims of discrimination arising from:

1. The application and denial of the contracts specialist-advanced position for which complainant interviewed on or about January 18, 2011, and for which he was scheduled to be re-interviewed on or about March 29, 2011;

2. The application and denial of the correctional management services director position for which complainant was interviewed on or about April 26, 2013;

3. The application and denial of the correctional services manager position for which complainant interviewed on or about June 4, 2013;

4. The application and denial of the correctional services manager, director of program services position for which complainant interviewed on or about June 6, 2013; and

5. The application and denial of the contacts specialist-advanced position in 2014;

they are hereby dismissed. These matters were actually decided as part of the Olmanson decision, were essential to the judgment, and meet the fundamental fairness requirements. See, Aldrich, 2012 WI 53, ¶¶ 97-100; Williams; Balele v. PDQ Food Stores Inc., ERD Case No. CR201203887 (LIRC June 18, 2015).

cc: Respondent's Attorney Andrea Olmanson

[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] This is an apparent reference to the federal court litigation, Balele v. Olmanson, et al., Case No.13-CV-783 (W.D. Wis.), that followed the filing of the third case at issue in this decision, ERD Case No. CR201400225, EEOC Charge No. 44320130151, as described below.

[3] It appears that three of these referenced positions may have been the rejected applications that were raised in the original complaint that was refiled in ERD Case No. CR201700278.

[4] Although the parties subsequently debated whether Title VII claims were part of the action, the state court complaint asserted that he had previously "filed his complaint with the EEOC and has received a Letter of Right to Sue," and attached a copy of his Notice of Right to Sue issued in EEOC Charge No. 443201301513. Balele v. Olmanson, et al., Dane Cty. Cir. Ct. Case No. 13CV3207, Complaint ¶ 41.

[5] Complainant was up front as to his motivation for filing in state court rather than federal court, noting that he was also subject to an order of the U.S. Court of Appeals for the Seventh Circuit in Balele v. Barnett, 1997 U.S. App. LEXIS 41461 (7^th Cir. Apr. 29, 1997), that all federal courts within the circuit must reject any filing that complainant may attempt to make until he has shown that he paid off certain substantial costs that were charged against him in a number of previous cases he had frivolously pursued, and then only after he submits an affidavit that the filing is not frivolous and has not been raised in previous suits. As complainant admitted, "this is the only court that can hear [complainant's] case." Olmanson, Complaint ¶ 43. Notably, the 2002 WPC Ruling referenced the Barnett order when it fashioned the filing sanctions relied on by ERD in the present cases.

[6] In addition to granting summary judgment, the court further augmented the Seventh Circuit's order in Barnett by requiring that any future cases brought by complainant that are removed from state court to federal court will require complainant to first file "proposed findings of fact in support of a motion for summary judgment" that will be reviewed by the court to determine whether a reasonable jury could conclude complainant's rights were violated. In the absence of proposed findings that sufficiently support a claim of discrimination, the court stated it would dismiss any new case at the outset without the need for defendants to file a summary judgment motion.

[7] Decision & Orders at 2, n.1.

[8] The "credit reports" and similar documents complainant submitted to ERD, and subsequently to the commission (see, e.g., Appendix 3 to complainant's November 20, 2017, Motion to Remand, which on first blush seems to belie complainant's claim that he paid off all his debts as it continues to identify certain unspecified debts to the Dane County Circuit Court), suffer from evident hearsay and foundation issues that, without more, make them wholly unreliable in proving the point he is attempting to make. Complainant's reliance on these documents is misplaced, and he will have to do more in the future to overcome his burden of showing that he has complied with the terms of the 2002 WPC Ruling.

[9] The Decision & Orders also note certain "Summit Credit Union records" that complainant submitted. Those documents appear to be a series of deposits into and withdrawals from complainant's account with the credit union, and have absolutely no relevance to this proceeding. See, also, the information discussed in note 11, below.

[10] After the issuance of the Decision & Orders, complainant submitted a copy of an unsigned, carbon duplicate of a check that he appears to assert was written to the State of Wisconsin on October 10, 2002, in the amount of $1,114. This being offered after both the ALJ's deadline of August 28, 2017, for providing proof that the relevant debts had been satisfied and the issuance of her Decision & Orders, it is not part of the record and the commission will not consider it. Wis. Admin. Code § LIRC 1.04. Even if it were considered, this document does not provide sufficient proof that complainant had satisfied those conditions under the 2002 WPC Ruling necessary to allow the filing of WFEA complaints against respondent. There is no signature, and by its terms it is "non-negotiable"; nor is there any indication that the check that is supposedly represented by the copy was actually negotiated (i.e., delivered to and cashed by the State), or what if any debts this was supposed to satisfy. No doubt, complainant would like the commission to assume that this evidences a check written to pay off the $1114.91 debt in Dane Cty. Cir. Ct. Case No. 00-CV-2776, but that would be contradicted by the credit report that complainant himself submitted that appears to show that that debt was still outstanding as of 2004.

[11] To be certain, complainant has made myriad assertions and arguments in his numerous filings, both with the ERD and the commission, to support the continuation of his complaint. The commission has reviewed them all, and all the others are meritless and do not even warrant discussion.

[12] In his March 17, 2017, response to respondent's initial position statement in ERD Case Nos. CR201700277 and CR201700278, in which respondent raised the issue of his need to comply with the 2002 WPC Ruling, complainant claimed that "he had paid all his debts" and that he "kept... records" (p. 16), citing an attached Ex. 8-C13. However, Ex. 8-C13 appears to be another copy of the complaint and cover letter that he attempted to file in 2011, and says absolutely nothing on the issue of whether he had paid the debts referenced in the 2002 WPC Ruling.

[13] More recently, complainant produced a copy of a satisfaction of judgment in State of Wisconsin v. Balele, Dane Cty. Cir. Ct. Case No. 00-CV-2776, entered on January 3, 2018. This is not part of the record before the commission and, therefore, we reach no conclusion as to whether complainant has in fact paid off this particular debt. Wis. Admin. Code § LIRC 1.04. The commission does note, however, that this would be more the type of evidence that should be presented to ERD in any future filing where compliance with the terms of the 2002 WPC Ruling is at issue.