JOHN MOORE, JR., Complainant

AMERICAN FAMILY MUTUAL INSURANCE CO., Respondent

An Administrative Law Judge for the Equal Rights Division issued a decision in the above-captioned matter on August 31, 1990. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed November 22, 1991

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

A judgment in a federal court lawsuit under Title VII can be given res iudicata effect in administrative proceedings before the Equal Rights Division and the Commission under the Wisconsin Fair Employment Act. Haynes v. Pressed Steel Tank Co. and United Steelworkers (LIRC, May 23, 1989), Schaeffer v. Personnel Commission, 150 Wis. 2d 132 (Ct. App. 1989). However, considerations of fairness require that a federal court judgment should not be given res iudicata effect to preclude litigation of a claim before the Equal Rights Division, if the substantive law by which the claim would be judged is different in federal court and before the Division. Thus, even the Respondent recognizes in this case that the critical issue is whether or not the law is the same under the Wisconsin Fair Employment Act and Title VII on the question of whether there is a covered employment relationship here.

In Lohse v. Western Express (LIRC, October 19, 1984), the Commission first made reference to the standards developed for determining the scope of the "employment" relationship under Title VII, and to the "economic realities" test developed under federal law, in the context of discussing an issue of the scope of the "employment" relationship under the Wisconsin Fair Employment Act. Then, in Collins v. MATC and Kelly Services (LIRC, December 19, 1986), Russ v. City Veteran Cab Co. (LIRC, December 4, 1987), and Jackson v. City of Milwaukee, Milwaukee Public Library (LIRC, December 14, 1990), the Commission established a pattern of deciding issues of the extent of coverage of the Wisconsin Fair Employment Act by direct reference to the standards established under federal law governing the extent of coverage under Title VII. In these decisions, the Commission looked to and cited specific federal court decisions interpreting the scope of the "employment" relationship covered under Title VII. The Commission also invoked the general proposition that, in interpreting the Wisconsin Fair Employment Act, it was appropriate to look to cases decided under Title VII. Bucyrus-Erie Co. v. DILHR, 90 Wis. 2d 408, 421, n. 6, 280 N.W.2d 142 (1979), Hamilton v. DILHR, 94 Wis. 2d 611, 620-21, n. 4, 288 N.W.2d 857 (1980), Anderson v. LIRC, 111 Wis. 2d 245, 254, 330 N.W.2d 594 (1983), Hiegel v. LIRC, 121 Wis. 2d 205, 217, 359 N.W.2d 405 (Ct. App. 1984).

Additionally, the Wisconsin Personnel commission has also, in ruling on questions of the scope of the "employment" relationship covered under the Wisconsin Fair Employment Act, looked to and cited federal court decisions interpreting the scope of the "employment" relationship covered under Title VII. Betz v. University of Wisconsin (Personnel Commission, February 8, 1991).

As it has been interpreted by administrative agencies charged with application of the Wisconsin Fair Employment Act, the law governing the scope of the "employment" relationship covered by the Act is thus the same as the law governing the scope of the "employment" relationship covered by Title VII. Therefore, the substantive law applied by the federal court in its decision to dismiss Moore's complaint in this matter is the same law that would have been looked to by the Equal Rights Division or the commission in deciding whether Moore was in a covered "employment" relationship for purposes of the Wisconsin Fair Employment Act. Thus, because the law is the same, there is no reason not to apply the doctrine of res judicata.

Moore argues that it is inappropriate to apply res judicata here because Wisconsin law, and not federal law, should be applied. However, as discussed above, the Commission's history of looking to law under Title VII to resolve questions of coverage under the Fair Employment Act establishes that the law is the same. Moore also argues, in effect, that the federal district court erred and that in fact he was an "employe" of Respondent under applicable federal law (and state law) standards. However, it is implicit in the principle of res judicata, that a contention that the first tribunal erred in some respect is irrelevant. The point of res judicata is to preclude relitigation and redetermination of issues. If this preclusion were only applied when a second tribunal determined that the first tribunal had decided the issue correctly, the second tribunal would in effect be providing the duplicative decision-making which application of the principle is intended to avoid. Moore has had his "day in court," at least figuratively speaking, in that he had the opportunity to respond to the motion for summary judgment and to present to the federal district court all of the arguments he now makes to the Commission with respect to why he should be viewed as having been an "employe" of Respondent. Whether the federal district court's decision on the matter was correct is not something which enters into the determination of whether the decision should be given res iudicata effect.

Moore recently submitted further argument, in the nature of a reply brief, in which he points to a decision of a Worker's Compensation Administrative Law Judge involving another sales agent of American Family Insurance. The Worker's Compensation ALJ found the agent was in a relationship of covered "employment" subject to the Worker's Compensation Act. This argument is irrelevant, since the standards under the two acts may be different, and also because it is just another argument that the federal district court erred.

Appealed to Circuit Court.  Affirmed May 26, 1992.  Appealed to the Court of Appeals.  Affirmed March 30, 1993, sub nom. Moore v. LIRC, 175 Wis.2d 561, 499 N.W.2d 289 (Ct. App. 1993).

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