The Wisconsin Equal Rights (ER) Decision Digest -- Sections 793-799     

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793 Appeal and review; Decisions appealable to court  

Violations of Sections 103.10(11)(a) or (b) of the Family and Medical Leave Act are expressly made subject to the remedial procedures of the Act itself. The Labor and Industry Review Commission has no jurisdiction in these cases. These cases are subject to review in circuit court. Kayler v. Stoughton Trailers (LIRC, 10/27/97).

The Labor and Industry Review Commission does not have jurisdiction to review Equal Rights Division decisions issued under sec. 101.055, Stats., regarding public employe occupational safety and health. Marchewka v. Milwaukee County (LIRC, letter ruling, 04/16/85).

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794 Appeal and review; Procedures for review by LIRC; scope of review

Circuit court directed the Commission to determine whether the Equal Rights Division had accorded due process to the respondent-employer by providing it with adequate notice of hearing. The commission, having decided that additional evidence was required in order for it to make the due process determination, has authority to send the matter back to the Equal Rights Division for the taking of additional evidence, reserving jurisdiction to make the due process determination once the additional evidence has been taken by the division and delivered to the commission. Weil v. Supercuts (LIRC, 1/29/16). 

A "newly discovered evidence"-based request for rehearing under Wis. Stat. § 227.49, and a motion to set aside, modify or change a decision under Wis. Stat. § 111.39(5)(c), both apply only to requests made after the final decision of the agency (LIRC) has been issued. They do not apply to asking LIRC to order further hearing in the course of its review. Once a petition for LIRC review is filed, an administrative law judge loses power to act in a case and cannot act on a motion for rehearing. However, LIRC's general review authority includes authority to order further hearing on grounds of newly discovered evidence - but in this case, evidence about an employment action occurring three years after the employment action was complained of, did not involve sufficient parallels to allow the conclusion that it would change the result in the case. Hafeman v. County of Sauk (LIRC, 04/04/14) 

Although the Commission has the authority to consider issues that were not the subject of a petition for review, it generally declines to exercise that authority. Where only the Complainant filed a petition (on the issue of remedy), and the Respondent did not file a petition on the merits, the Commission declined to take up the Respondent's argument that it did not discriminate. Brown, et al. v. Chippewa Valley Technical College (LIRC, 11/28/14).

Because the ERD tells parties they can use the ERD's post office box address to mail petitions, a petition for review mailed to the post office box address of ERD is 'received' by the ERD when it is delivered to the ERD's post office box, even if DWD mail room employees do not pick it up and deliver it to the offices of the ERD until the next day. The burden of proving when the item was delivered to ERD's post office box is on the sending party. In this case, USPS Priority Express Mail tracking information established delivery to ERD's post office in time to make the petition timely. Musse v. Luther Midelfort Northland (LIRC, 09/30/14) (appealed to circuit court).

The Complainant petitioned for LIRC review on the grounds that the ALJ erred by applying a mixed-motive analysis and limiting the Complainant's remedy to a cease and desist order, based on the conclusion that the Respondent would have terminated the Complainant even in the absence of its discriminatory motive. The Respondent did not file a petition for review, but argued in its brief to LIRC that the ALJ incorrectly decided that the Respondent was even partially motivated by discriminatory animus. LIRC addressed the Respondent's argument on liability even though the Respondent had not filed a petition for review, because the issue raised by the Complainant, which concerned the degree to which the Respondent was motivated by discriminatory animus, opened the door to the possibility of concluding that there was insufficient evidence to find even a partial discriminatory motivation. Mattocks v. Village of Balsam Lake (LIRC, 09/04/14).

In general, commission review is based only on the evidence previously submitted at hearing.  Wis. Admin. Code § 1.04.  The commission, however, has the authority to set aside a decision and remand a case to the department for further evidentiary proceedings (see  Wis. Stat. § 111.39(5)(b)), and has considered doing so in two kinds of situations:  1) when the petitioner claims to have newly discovered evidence to present; and 2) when the petitioner claims that in the initial hearing he or she was denied procedural due process.  Delgado v. Saint Gobain Performance Plastics Corp. (LIRC, 11//29/13).

Petitions for Commission review may not be filed by e-mail. Goulet v. Senior Citizens Employment & Training, Inc. (LIRC, 02/21/12).

The "Notice of Appeal Rights" that accompanied the decision of the Administrative Law Judge in this case made it clear that a petition for review had to be sent to the Equal Rights Division. The Complainant's letter to an employee of the Division of Hearings & Appeals did not suffice as a petition for review by LIRC because such petitions must be filed with the Equal Rights Division. Goulet v. Senior Citizens Employment & Training, Inc. (LIRC, 02/21/12).

If the reason that a complainant did not receive a copy of the decision of the Administrative Law Judge is that he had not kept the Equal Rights Division informed of his current address, this was not an 'exceptional delay' which would warrant overlooking the lateness of the Complainant's petition for LIRC review. Avant v. Milwaukee Area Technical College (LIRC, 08/11/11).

As a general matter LIRC conducts a de novo review and acts as an original fact-finder and reviewer of an ALJ's decision. However, where LIRC is asked to review an ALJ's exercise of discretion in ruling on discovery matters the standard is not whether LIRC believes that a particular position has been substantially justified and whether attorneys' fees and costs should have been awarded, but whether it finds the ALJ's decision on the issue to have been an abuse of discretion. A discretionary decision will be sustained if the ALJ has examined the relevant facts, applied the proper standard of law using a rational process, and reached a reasonable conclusion. Kutschenreuter v. Roberts Trucking (LIRC, 04/21/11).

The petition for LIRC review in this case was not timely. A copy of the Administrative Law Judge's decision was sent to the Complainant's address, where it was inadvertently placed with mail for someone else in the Complainant's household so that the Complainant did not discover it until after some time had passed. The Complainant was not prejudiced because of exceptional delay in the receipt of a copy of the decision within the meaning of sec. 111.39(5)(b), Stats. The decision had been 'received' by the Complainant when it was delivered to her address by the U.S. Postal Service. The delay in her actually seeing the decision was caused by mishandling of received mail within her household. This did not constitute exceptional delay within the meaning of the statute. Vanderkin v. Ultra Mart Foods (LIRC, 02/10/11).

The Labor and Industry Review Commission would not consider documents submitted by the Complainant for the first time on appeal from the decision of the Administrative Law Judge. The Commission is required to conduct its review based on the evidence which was submitted and received at the hearing. Powell v. Walgreen Drug Stores (LIRC, 04/09/10).

The only statutory exception under which a late petition for review may be considered applies when a party has been prejudiced because of exceptional delay in the receipt of a copy of the Administrative Law Judge?s decision. Under these circumstances, the Commission may extend the time in which to file a petition by another twenty-one days. Treige v. Servicemaster Clean (LIRC, 06/25/10).

The Respondent filed a ?motion to re-open proceedings? several months after the Administrative Law Judge issued an order dismissing the complaint based upon the Respondent?s failure to appear at hearing. The Respondent asserted that its failure to appear at hearing was caused by the neglect of the attorney who was representing it at the time. The Wisconsin Fair Employment Act contains no provision which would allow the Labor and Industry Review Commission to accept late petitions, even when it appears that there is good cause for the lateness of the petition or the lateness of the petition resulted from factors beyond the petitioner?s control. Even if a party?s failure to file a timely petition is the fault of their attorney, this does not excuse the lateness of the appeal or provide the Commission with any authority to act on the petition. Treige v. Servicemaster Clean (LIRC, 06/25/10).

The test for determining whether a writing filed with the Equal Rights Division after the issuance of an Administrative Law Judge?s decision should be treated as a petition for Commission review has to do with its intent and purpose, specifically whether it expresses dissatisfaction with the ALJ?s findings and order and asks for review of or changes in the finding and order. In this case, it was implicit in the Respondent?s ?motion to re-open proceedings? that the Respondent did not want the ALJ?s earlier decision to stand, and that it sought to have that decision set aside. A party?s characterization of the document filed with the Equal Rights Division after the issuance of an Administrative Law Judge?s decision does not control the question of whether it should be treated as a petition for Commission review. In this case, given its substance, it was appropriate to treat the Respondent?s ?motion to re-open proceedings? as a petition for Commission review. Treige v. Servicemaster Clean (LIRC, 06/25/10).

When a party fails to comply with a briefing schedule issued by the Commission, the Commission will generally overlook the failure where the lateness of the brief is minor, and where there is no reason to believe that there will be any prejudice to the other party from accepting the late brief. Johnson v. Roma Pizza II (LIRC, 02/25/09).

Writings filed with the Equal Rights Division in this case after the issuance of an Administrative Law Judge?s decision, although they concerned the case, should not have been considered to have been petitions for Commission review. The test for determining whether a writing filed with the Equal Rights Division after the issuance of an ALJ?s decision is a petition for review has to do with the its intent and purpose (specifically, whether it expresses dissatisfaction with the ALJ?s findings and order and asks for review of, or changes in, the finding and order). In this case, a motion filed by the Respondent ?for determination of frivolity and for an award of fees and costs? was not a petition for review within the meaning of sec. 111.39(5), Stats. The motion did not indicate that the Respondent was dissatisfied with the findings and order of the ALJ. On the contrary, the Respondent was instead asking for the issuance of a new and separate order on another matter, which was a matter which had never been placed before the ALJ and which the ALJ had not addressed. Henderson v. Department of Corrections (LIRC, 03/19/09).

Where the notice of appeal rights issued by the Equal Rights Division misstated the appeal deadline, the time period for filing a petition for review never began to run.  The petition filed by the Complainant, which was filed over one month after the ALJ's amended decision was issued, was, therefore, deemed to have been timely filed.  Abraham v. Roundy's (LIRC, 06/20/08).

The Complainant faxed a petition for review to the Equal Rights Division after the close of business on the last day that a petition for review could be received.  The petition for review was, thus, filed after the regular business hours of the Division and was considered filed on the following Monday, which was the next business day of the Division, in accordance with the Division's administrative rules. The petition for review would have been timely under the Labor and Industry Review Commission's administrative rule regarding the filing of petitions for review by facsimile.  However, the Equal Rights Division's own rules governing the procedure for filing such petitions were controlling.  Thomas v. ITT Technical Institute (LIRC, 05/29/08).

Although the filing of a petition for review by either party vests the Labor and Industry Review Commission with jurisdiction to review the entire decision, the Commission will generally not exercise jurisdiction over issues that are neither expressly nor implicitly raised in a petition for review.  Nunn v. Dollar General (LIRC, 03/14/08).

The Labor and Industry Review Commission is limited to reviewing the evidence of record in reaching its decision.  This consists of the evidence offered and received at the hearing before the Administrative Law Judge.  Metzger v. UGD Automotive (LIRC, 2/28/08).

The Labor and Industry Review Commission may consider a late petition for review only if it is satisfied that the party has been prejudiced because of exceptional delay in the receipt of a copy of the Administrative Law Judge’s decision. Under these circumstances, the Commission may extend the time in which to file a petition by another 21 days. Sec. 111.39(5)(b), Stats. “Exceptional delay” refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. In this case, the Complainant did not receive his copy of the Administrative Law Judge’s decision because he had not kept the Division informed of his address. This does not constitute “exceptional delay” within the meaning of the statute. Accordingly, the petition for review was dismissed. Cotton v. Band Box (LIRC, 12/07/07).

On review, the Labor and Industry Review Commission will not consider documents which were not part of the evidentiary record made at hearing. LIRC is required to conduct its review based on the evidence submitted and received at the hearing. On appeal, the Complainant submitted various documents to the Commission which had not been introduced at the hearing. The Complainant asserted that they were not “new evidence” because these materials had been submitted to the EEOC and to the Equal Rights Division during their initial investigations. However, a party is required to present any evidence the party believes will support the party’s case at the hearing. Whitmore v. Levy Premium Food Service (LIRC, 10/19/07).

The Labor and Industry Review Commission denied the Complainant’s request to forward to the Commission certain medical records which his doctor had failed to supply at the time of the hearing. By law, LIRC is required to conduct its review based only on the evidence submitted and received at the hearing. Schlesner v. Cooper Power Systems (LIRC, 04/16/07).

The review authority of the Labor and Industry Review Commission is limited to petitions which are received by the Equal Rights Division within twenty-one days after a copy of the Administrative Law Judge’s decision is mailed to the last-known address of the parties. The only statutory exception under which a late petition may be considered is when LIRC is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of the Administrative Law Judge’s decision. Under these circumstances, LIRC may extend the time in which to file a petition by another twenty-one days. Sec. 111.39(5)(b), Stats. However, the “exceptional delay” referenced in this statute refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. Exceptional delay and receipt of a copy of a decision caused by factors external to the Equal Rights Division is not a basis for extending the time to file a petition. Strommen v. Cross Plains Citgo Station (LIRC, 03/29/07).

The Labor and Industry Review Commission conducts a de novo review of the record upon appeal of an Administrative Law Judge's decision. Accordingly, all matters at issue, not simply those which form the basis for the petition, are properly within the scope of its review. Gaulke v. School Dist. of Stratford (LIRC 12/08/06).

Neither the Wisconsin Fair Employment Act, the rules of the Equal Rights Division nor the rules of the Labor and Industry Review Commission require that a petition for review contain any special language. The Complainant's correspondence to the Equal Rights Division in this case requesting reconsideration of an Administrative Law Judge's decision should have been treated as a petition for review since the Equal Rights Division ALJs have no authority to reconsider their decisions once issued. If the Equal Rights Division was allowed to decide what constitutes a petition for Commission review, this would be problematic as the Division should not be dictating whether or not a party is entitled to Commission review of a decision by an Administrative Law Judge. Nabors v. Kelly IT Resources (LIRC, 10/06/06).

The Complainant's petition for review was not timely filed where she slid it under the door of the Equal Rights Division's office after it had closed for business at 4:30 p.m. on the last day of the appeal period. The jurisdiction of the Labor and Industry Review Commission is dependent upon there being a written petition filed with the Department within twenty-one days from the date that a copy of the Administrative Law Judge's findings and order is mailed to the parties. A petition for review cannot be filed with the Equal Rights Division or physically received by the Division if its office is closed. Wilson v. Milwaukee Bd. of School Directors (LIRC 07/14/06).

There is no provision in the Wisconsin Fair Employment Act which would allow the Labor and Industry Review Commission to accept late petitions for review, even if it appears that there is good cause for the untimeliness. Smith v. Schwans Food Co. (LIRC 01/31/06).

The Labor and Industry Review Commission conducts a de novo review, acting as an original fact-finder and reviewer of the Administrative Law Judge’s decision.  As a result, in the absence of some indication that an Administrative Law Judge’s conduct of the hearing improperly influenced the creation of the record in some way, remand for hearing before a different Administrative Law Judge would not be necessary or appropriate, even if some bias or appearance of bias was present in the case below.  Carbage v. Genesis Behavior Serv. (LIRC, 04/15/05).

The role of the Labor and Industry Review Commission is to act as an original and ultimate fact finder. The Commission, therefore, conducts a de novo review. Spearman v. Burleigh Dental (LIRC, 09/30/04); aff'd sub nom. Spearman v. LIRC (Milw. Co. Cir. Ct., 04/05/05).

Petitions for review by the Labor and Industry Review Commission may not be filed by e-mail. Farvour v. County of Winnebago (LIRC, 11/13/03).

Although the complaint was filed more than 300 days after some of the acts of alleged discrimination, the timeliness issue was not raised by the Respondent, and the Labor and Industry Review Commission will not raise this issue sua sponte. Merta v. Johnson Controls (LIRC, 10/30/03); aff'd sub nom. Merta v. LIRC, Ct. App. Dist. III, unpublished opinion, 02/08/05.

The Labor and Industry Review Commission is not limited to deciding whether an Administrative Law Judge abused his discretion. The Commission conducts a de novo review, acting as an original fact finder and reviewer of the Administrative Law Judge’s decision. Clemons v. Opportunities Industrialization Center of Greater Milwaukee (LIRC, 02/14/03).

The Labor and Industry Review Commission reviews decisions by administrative law judges on awards of costs and attorneys’ fees in discovery motions by treating them as exercises of discretion subject to a test of reasonableness. Wells v. Roadway Express (LIRC, 05/13/02).

The Respondent’s motion to supplement the record was denied. The evidence cited as "newly discovered evidence" did not constitute newly discovered evidence. In order to constitute newly discovered evidence, a party must show that the evidence is sufficiently strong to reverse or modify the Administrative Law Judge’s decision and that the evidence could not have been previously discovered by due diligence. McKnight v. Silver Spring Health and Rehabilitation (LIRC, 02/05/02).

LIRC will decline a party’s request to file a brief where it has already completed its review of the case (although the decision was not yet issued) and where no request for a briefing schedule was made either with the petition for review, or when the transcript was submitted to LIRC. Barker v. Metz Baking Co. (LIRC, 12/15/00).

By law, LIRC is required to base its review solely upon the sworn testimony and documentary evidence submitted at the hearing. LIRC will neither consider nor address documents presented for the first time on appeal. Butler v. City of Madison (LIRC, 11/27/00).

On review, LIRC will not consider documents which were not part of the evidentiary record made at hearing. By law, LIRC is required to conduct its review based on the evidence submitted and received at the hearing. Sec. 111.39(5), Wis. Stats. Reinke v. Pick ‘n Save Mega Food Centers (LIRC, 01/28/00).

The Labor and Industry Review Commission has no authority to accept late petitions for review, even if it appears that there is good cause for the untimeliness or that the lateness of the petition resulted from factors beyond the petitioner’s control. Lindell v. St. Croix Valley Memorial Hosp. (LIRC, 12/10/97).

Issues raised in a notice of appeal but not briefed or argued to LIRC on appeal will be deemed abandoned. Hentges v. Department of Regulation and Licensing (LIRC, 01/12/96).

A petition for review was untimely where it was not received by the Equal Rights Division within 21 days of the date of the decision. It was not reasonable for the Complainant to believe that a letter mailed on the day before Thanksgiving would go from Los Angeles to Milwaukee by the day after Thanksgiving, which was the 21st day of the appeal period. Jackson v. Gateway Technical College (LIRC, 01/12/95).

The Labor and Industry Review Commission will not consider issues which are raised for the first time in a reply brief. Ollenburg v. Milwaukee County Sheriff's Dept. (LIRC, 09/28/94).

In a case where the complaint alleged that the Complainants had been retaliated against by having their hours reduced after they filed a wage claim, the Labor and Industry Review Commission declined to address the issue whether the mere making of a threat to retaliate constitutes an independent violation of the Wisconsin Fair Employment Act. The complaint had not claimed that such a threat had been made, much less that it was an independent violation of the Act. The Initial Determination made no finding that any such threat had constituted an independent violation of the Act. The claim that the threat itself was an independent violation of the Act was first expressly raised only in the Complainants' post-hearing brief. The Commission will not attempt to dispose of a case on a theory other than the one alleged, initially investigated, and noticed for hearing. Blaser v. Oconto County Sheriff's Dept. (LIRC, 09/20/94).

The Wisconsin Fair Employment Act contains no provision allowing LIRC to accept late petitions for review, even if it appears that there is good cause for the untimeliness. Brown v. City of Madison (LIRC, 02/24/94).

The time period specified by statute for filing an administrative review by LIRC never began to run where the Administrative Law Judge's decision was not accompanied by the correct notice of the rights of the parties to petition for administrative review. Heinritz v. Lawrence Univ. (LIRC, 09/30/93).

The Labor and Industry Review Commission has the power to extend the time for filing a petition for review only where it has been satisfied that a party has been prejudiced by an exceptional delay in receipt of a copy of a decision. Receiving the decision four days after the day it was mailed is not an exceptional delay. The Complainant's inability to contact his lawyer during the appeal period is not a factor to be considered in deciding to extend the appeal period. Lami v. Tomah Products (LIRC, 07/14/93).

Although the filing of a timely petition for review by any party gives the Labor and Industry Review Commission the authority to review any and all aspects of a decision below, the Commission has determined as a matter of policy that it will generally not exercise that authority to address issues when they are neither expressly nor implicitly raised by a petition for review. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).

The requirement of timely filing of a petition for LIRC review is jurisdictional. There is no exception which would allow LIRC to assume jurisdiction over an untimely petition for review on some theory that the lateness of the petition had been caused by a factor beyond the control of the petitioner or that the petitioner showed good cause for the failure to file the petition on a timely basis. Spaeth v. Prudential Preferred Properties (LIRC, 05/21/93).

While the filing of a petition for review by any party vests the Labor and Industry Review Commission with jurisdiction to review the entire decision, the Commission will generally not exercise that jurisdiction to address issues that are neither expressly nor implicitly raised by a petition for review. Neuman v. Hawk of Wisconsin (LIRC, 03/12/93).

Where the Complainant failed to file a timely appeal of an order of dismissal, the Labor and Industry Review Commission lacked jurisdiction to hear the Complainant's untimely appeal of the dismissal. Hill v. Units (LIRC, 09/30/92).

The Equal Rights Division incorrectly attached a Notice of Appeal Rights-- Review by Court to an Administrative Law Judge's order dismissing a case for lack of jurisdiction. That notice apprised the parties that a petition for review must be filed within 30 days. The correct notice of appeal rights should have referenced a petition to LIRC, and noted that the time frame was 21 days and not 30 days. Thus, where the Complainant's petition to LIRC was received 26 days after the Administrative Law Judge's decision and order were mailed, LIRC accepted the petition as timely. Valeri v. Delco Electronics-General Motors (LIRC, 07/17/92).

Review by the Labor and Industry Review Commission is not an appeal as such, but is a de novo determination. A petition for review by any party gives the Commission authority to review and decide all issues in the case. Forman v. Cardinal Stritch College (LIRC, 06/08/92).

The Complainant was not prejudiced because of exceptional delay in receipt of a copy of the Administrative Law Judge's decision where the cause of the delay in the receipt of the decision appeared to be the Complainant's failure to apprise the Department of his new address and there was no evidence that the Complainant's attorney had not received prompt notice of the ALJ's decision. Hadelli v. Essco, Inc. (LIRC, 04/09/92).

Sec. 111.39(5), Stats., which requires the filing of a petition for review within 21 days, contains no provision allowing the Commission to accept late petitions even when it appears that there is good cause for the lateness of the petition or the lateness of the petition resulted from factors beyond the petitioner's control. The only circumstances in which a late petition for review can be entertained are when the Commission is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of the findings and order. However, the "exceptional delay in receipt of the decision" provision must be interpreted to apply only where the exceptional delay is caused by the agency issuing the decision -- in this case, the ERD. Green v. Kimberly-Clark/Badger Globe Mill (LIRC, 04/09/92).

Where a Complainant mailed a petition for LIRC review via "Priority Mail" on a Thursday, which was one day prior to the expiration of the deadline, and was told by a postal clerk that delivery would take place the next day, the petition was determined to have been untimely filed where the petition was not actually received until the following Monday, which was three days after the deadline. Filing is not complete upon mailing but requires actual physical receipt at an office of the Equal Rights Division. McGuinness v. Milwaukee County (LIRC, 04/09/92).

The Commission may exercise its plenary review authority to review an issue which has not been appealed by either party where the issues appealed by one party are closely related to an issue which has not been appealed. Valentin v. Clear Lake Ambulance Service (LIRC, 02/26/92).

LIRC lacks authority to entertain late petitions for review even when the lateness of the petition was attributable to circumstances beyond the petitioner's control such that there was good cause for the untimeliness of the petition. In the relatively few cases in which a late petition has been accepted, it has been accepted on the basis of the conclusion that the petition was mailed within such time as to warrant a reasonable belief that it would be received by LIRC on time and that the petition could, therefore, be deemed timely. The language in sec. 111.39(6), Stats., referring to "exceptional delay" refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. Exceptional delay in the receipt of a copy of a decision caused by factors external to the Equal Rights Division (such as the hospitalization of the Complainant) are not within the intendment of the statute. Lacy v. Briggs & Stratton (LIRC, 07/09/91).

The late filing of a petition for review could not be overlooked where the Respondent's corporate office in Texas, which made the determination to appeal the Administrative Law Judge's decision, received that decision within a week to ten days after it was mailed to the Respondent's local office in Wisconsin. The Respondent still had 11 to 14 days within which to file a petition for LIRC review. Orwen-Richter v. Royal Int'l. Optical (LIRC, 05/03/91).

The filing of a petition for review by any party vests LIRC with jurisdiction to review the entire decision. However, LIRC will generally not exercise that jurisdiction to address issues that are neither expressly nor implicitly raised by a petition for review. Dude v. Thompson (LIRC, 11/16/90).

LIRC's review jurisdiction is not limited to specific issues mentioned in the petition for review. LIRC's jurisdiction extends to all issues presented in the case. Krenz v. Lauer's Food Market (LIRC, 09/27/90).

The failure of a party's attorney to file a timely petition for review does not constitute an exception to the statutory requirement that a petition for review be timely filed. Laskowski v. Beloit (LIRC, 03/30/89).

The Administrative Law Judge's decision was issued on October 30, 1987, and on November 27, 1987 the Department received a petition for review from the Respondent in a soiled and crumpled envelope which had a postage meter date stamp of November 18, 1987, and a post office date stamp on the back of the envelope of November 25, 1987. The Respondent submitted an affidavit of a corporate officer who stated that he had personally deposited the Respondent's petition for review in a mail box on November 18, 1987. The Respondent's petition is deemed to have been timely filed since under normal circumstances the petition would have been received by November 20th, the last day in which to file a timely petition. Hasenohrl v. SFGP, Inc. (LIRC, 06/27/88).

Where the Respondent, appealing from a finding of discrimination, submitted affidavits of witnesses containing statements contrary to certain claims of fact made by the Complainant at hearing, the Commission held that sec. 227.49, Stats., did not allow for the submission of such evidentiary matter in a petition for review to the Commission since that section concerns only petitions for rehearing. The Commission held further that, in any event, the affidavits would not constitute new evidence since it could have been previously discovered by due diligence, and since submission of the statements with the petition for review could be nothing more than a guise to get around the Respondent's failure to disclose the names of its witnesses at least ten days prior to hearing as required by rule. Hasenohrl v. SFGP, Inc. (LIRC, 06/27/88).

The "substantial evidence in the entire record" standard applies to court review of findings of fact of an administrative agency, but is not applicable to the agency's review of findings of a hearing examiner. An agency's review of an examiner's finding is not an appeal, but a certain deference to the findings of the original finder of fact is required, particularly where the principal issues involve credibility. Where more than one finding may be supported by substantial evidence, it is the role of the agency and not the court to decide which finding should be accepted. Schenck v. LIRC (Rock Co. Cir. Ct., 02/09/88).

Even assuming that the failure of the Complainant to timely file a petition for review was the fault of her attorney, this would not excuse the lateness of the appeal. Lackey v. Miller Brewing Co. (LIRC, 07/06/87).

Where the Complainant's petition for review of the Administrative Law Judge's decision was mailed on the last day for filing a timely petition but was not received by the department until two days later, the petition was untimely and was dismissed. Skoog v. Impact Seven (LIRC, 02/12/87).

LIRC had jurisdiction to review an examiner's decision where the petition was received one day after the statutory period had elapsed at a time when the DILHR offices were temporarily relocated. Foth v. A.M.C. (LIRC, 01/08/85).

A party who knew of the filing requirements to petition for review failed to file properly by delivering the petition to a DILHR Job Service Officer after the 20 day statutory limit, and where it was not received at the DILHR Legal Services Office until after 21 days had elapsed. Leece v. LIRC (Wis. Dept. of Transp.) (Dane Co. Cir. Ct., 02/10/84).

Failure to apprise an employer that LIRC interprets the 20 day period for filing an appeal as calling for actual receipt of the review petition does not violate the employer's due process rights; the date stamped on the employer's petition by LIRC is conclusive evidence of the date of receipt where the employer offered no documentary or other substantial evidence to refute its accuracy. UW-Board of Regents v. LIRC (DeJong) (Dane Co. Cir. Ct., 1982).

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795 Appeal and review; Summary of proceedings as basis for review

Despite the fact that the hearing record was flawed, with only the ALJ's voice coming through clearly, the audible portions, plus the ALJ's notes, constituted a sufficient record for a full and fair consideration of the issues raised in the complainant's petition for review, because the issues had to do mainly with the alleged conduct of the ALJ and respondent's counsel, and could be dealt with without reference to the testimony of witnesses. Davis v. Oxbo International Corp. (LIRC, 07/31/2015). 

When portions of the hearing are accidentally not tape-recorded and there are reasons to believe the commission's review could be compromised by missing testimony, LIRC has remanded.  While in Popp the commission relied on the ALJ's notes of un-recorded testimony, the un-recorded testimony in that case was the cross-examination of a collateral witness, and it was also possible  to determined that the ALJ's notes were reliable by comparing them to portions of the hearing that had been tape-recorded.  Here, all of the testimony of the complainant, and parts of the testimonies of other witnesses, was not recorded, and in addition, there was reason to question the reliability of the ALJ's notes.  Therefore, the matter was remanded for further hearing. Clarke v. Plast-O-Con Inc. (LIRC, 02/28/99).

Consideration of the tapes of the hearing is discretionary with the Labor and Industry Review Commission. (Sec. LIRC 1.04, Wis. Adm. Code). Gryzwa v. Goodwill Indus. (LIRC, 09/26/95).

The fact that a portion of a tape recording of the hearing was blank had no effect on the Labor and Industry Review Commission's ability to complete a full and fair review where the Commission had available to it the summary of proceedings prepared by the Administrative Law Judge. Popp v. Rhinelander Paper Co. (LIRC, 07/28/95).

Although the Labor and Industry Review Commission has the discretion to listen to the hearing tapes in order to verify the accuracy of an Administrative Law Judge's summary of proceedings, it will not do so where the Complainant is, in fact, disputing the factual content of witness testimony rather the authenticity of that testimony. In this case, even if the synopsis of testimony was inaccurate with respect to certain matters, such inaccuracies would in no way affect the outcome of the Complainant's case upon review. Therefore, LIRC deemed it unnecessary to listen to the hearing tapes. Hanson v. Exel Inns of America (LIRC, 08/25/94).

Where a transcript is prepared after the Administrative Law Judge's decision has been issued, its use in reviewing the ALJ's decision is discretionary with the Commission. LIRC has generally decided whether or not to use transcripts based on its assessment of whether they are complete and accurate. LIRC declined to rely on transcripts in this case because they were prepared from inadequate copies of the hearing tapes, with a large number of indications that parts of the testimony were omitted because they were inaudible. In this case, the Commission will rely a summary of proceedings prepared by the ALJ in lieu of the transcript. Roncaglione v. Peterson Builders (LIRC, 08/11/93).

On review, the Labor and Industry Review Commission reviewed the hearing tapes and determined that there were errors and omissions in the summary of proceedings. However, LIRC's review of the tapes also served to provide it with a degree of familiarity with the evidence of record at least equivalent to that which a summary of proceedings is intended to provide. Forman v. Cardinal Stritch College (LIRC, 06/08/92).

The summary of proceedings prepared by the Administrative Law Judge contained several errors and omissions. However, because LIRC's review was based upon listening to the tapes of the hearing, LIRC did provide the Complainant with a full and fair review. Yuhas v. Electrolux (LIRC, 06/25/91).

Errors in the Administrative Law Judge's summary of proceedings do not justify a reversal or rehearing where the Commission reviewed the case based on listening to the actual tapes of the hearing and thus was not affected by any errors. Martin v. Industrial Combustion Div. (LIRC, 06/04/87).

A review by LIRC based on the examiner's summary is permissible where there was no showing that the summary misstated the testimony, where LIRC consulted with the examiner and where its findings were based on undisputed testimony. Bidlack v. LIRC (Sola-Basis Indus.) (Walworth Co. Cir. Ct., 03/25/81).

It was not reversible error for an examiner who had not held the hearing to base the decision on a review of the summary of proceedings rather than the transcript where the evidence introduced at the hearing was adequately reported in the summary. Sanchez v. LIRC (Dane County Community Action Comm.) (Dane Co. Cir. Ct., 1980).

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796 Appeal and review; Requirement that LIRC consult with ALJ regarding credibility impressions

Where in fulfillment of the requirement that LIRC consult with the Administrative Law Judge regarding any demeanor impressions affecting his decision and in response did not indicate any, it was inferred he had none, and that he assessed credibility based on content of testimony alone. Nielsen v. Sports Clips (LIRC, 03/28/14)

LIRC is not required to consult with the Administrative Law Judge when its decision does not hinge upon witness credibility. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651.

The Labor, Industry and Review Commission is not restricted to consulting with the Administrative Law Judge in only those situations where it intends to reverse the decision of the Administrative Law Judge based on credibility. Moreover, the consultation between the Commission and the Administrative Law Judge is not prohibited as an ex parte communication. The Commission, not the Administrative Law Judge, is the entity vested with the responsibility of making credibility determinations and finding the facts in the case. Wolf v. LIRC (Ct. App., Dist. II, unpublished decision, 03/13/96).

Due process requires that the Labor, Industry and Review Commission submit a memorandum opinion explaining the basis for its decision if it reverses the Administrative Law Judge's findings. Wolf v. LIRC (Ct. App., Dist. II unpublished decision, 03/13/96).

The Administrative Law Judge's characterization of a witness' outmoded view of women in the workplace may well constitute "demeanor" which defines the witness' personal characteristics or beliefs. But it is not "demeanor" as that term is used to define the nonverbal messages which a witness may give off while testifying. The former goes to the substance of the evidence; the latter goes to the credibility of the witness. In fact, the ALJ's conclusion flowed from the substance of the witness' testimony, and not from the witness' demeanor. LIRC is as well equipped to make such conclusions regarding credibility as the Administrative Law Judge. Schiller v. LIRC, (Ct. App., Dist. II, unpublished decision, 11/16/94) (affirming Schiller v. City of Menasha Police Dept. (LIRC, 01/14/93)).

The Labor and Industry Review Commission is expressly empowered to reject the Administrative Law Judge's recommendation in rendering a final decision, provided that it consults with the Administrative Law Judge to determine his or her impressions of the credibility of witnesses and explains in a memorandum opinion why it disagreed with the Administrative Law Judge. Hoell v. LIRC, 186 Wis. 2d 608, 522 N.W.2d 234 (Ct. App. 1994).

An Administrative Law Judge's inability to provide LIRC with any impressions of the witness' demeanor was not critical to LIRC's review of the Complainant's testimony where there were sufficient inconsistencies in the testimony to undermine the Complainant's credibility. Haskett v. LIRC (Ct. App., District III, unpublished decision, 08/24/93).

The requirement of consultation with a hearing officer arises from the rationale that there is a constitutional right to the benefit of demeanor evidence. Such consultations are necessary in order that the Administrative Law Judge can share his or her observations of the witness's manner of testifying, demeanor, hesitancies and inflections. Sullivan v. Sacred Heart School Bd. (LIRC, 03/30/93).

The purpose of a consultation requirement is for the Administrative Law Judge to provide the Commission with information about the manner in which the testimony was given, i.e., physical appearance of the witness, facial expression, tone of voice, and similar matters. The Commission can consider the substance of the witness's testimony and decide whether or not it is believable and what inferences it may or may not support on the critical question of motivation. Schiller v. City of Menasha Police Dept. (LIRC, 01/14/93).

The purpose of the consultation requirement is to allow the ALJ to convey any information about witness demeanor that is unavailable to the commission.  An ALJ's indication that she found testimony of a witness to be internally inconsistent,  is not a matter of demeanor evidence at all.  Consistency or inconsistency of evidence is a characteristic of the evidence itself, not of the manner in which the evidence was given, and a reviewer deciding the case on the record is in just as good a position as the hearing officer to draw conclusions about credibility based on such factor.  When a case is pending before the Labor and Industry Review Commission, responsibility for making the ultimate inference about credibility on the basis of content of testimony and manner of testifying is the Commission's. Brye v. Brakebush Bros. (LIRC, 01/11/93).

In situations where an Administrative Law Judge has heard conflicting testimony and has made findings based upon the credibility of the witnesses, the Commission ordinarily will accord some deference to the ALJ's findings. Hoell v. Narada Productions (LIRC, 12/18/92).

Where the parties' versions of the facts conflict, unless the Commission finds a compelling reason in the testimony or elsewhere in the record, the Commission will defer to the Administrative Law Judge who had the opportunity to view the witnesses' demeanor and make a determination of credibility. Roberge v. School Dist. of Stanley-Boyd (LIRC, 02/05/92).

Consultation with the Administrative Law Judge is required only when LIRC reverses the Administrative Law Judge's decision. Behm v. William Haasl, D.D.S., S.C. (LIRC, 10/21/91).

The Commission is not required to consult with the Administrative Law Judge where it reverses the Administrative Law Judge's decision solely based upon its drawing different inferences from the facts than the Administrative Law Judge. Not every question of fact implicates questions of credibility. Maline v. Wisconsin Bell (LIRC, 10/30/89).

Although the Commission had consulted with the ALJ before reversing his finding of discrimination, its decision was set aside where it did not adequately explain why it arrived at a different decision from that of the ALJ. Kelm v. LIRC (Watertown Public Library) (Dodge Co. Cir. Ct., 02/22/85).

Where an examiner other than the one who held the hearing makes findings on the credibility of witnesses, that examiner should state in the record the personal impressions of the first examiner concerning witness demeanor. Muth v. LIRC (A.O. Smith) (Milwaukee Co. Cir. Ct., 07/22/83).

Where the Commission sets aside as untruthful testimony relied upon by an examiner, it must consult with the examiner in a meaningful way and state the reasons for its disagreement. Phillips Plating v. LIRC (Olson) (Price Co. Cir. Ct., 12/21/82).

The Commission may reverse a hearing examiner's decision without consultation where the reversal was based on law. Laux v. LIRC (Dixon) (Winnebago Co. Cir. Ct., 10/15/82).

LIRC's failure to consult with the examiner before rejecting his proposed order was probably erroneous, but is not reversible error where rejection of the company doctor's testimony was not based on his demeanor, but because the substance of his testimony did not support his conclusion. AMC v. DILHR (Basile) (Dane Co. Cir. Ct., 01/13/82).

Due process requires that the Commission have the benefit of the examiner's personal impressions of the material witnesses before rejecting the examiner's decision. The Commission must consult of record with the examiner to glean his impressions of the credibility of the witnesses. Rucker v. ILHR Dept., 101 Wis. 2d 285, 304 N.W.2d 169 (Ct. App. 1981).

LIRC must have the benefit of the hearing examiner's personal impressions of the material witnesses when rejecting the examiner's recommendations and must include in a memorandum opinion an explanation for its disagreement with the examiner. Hamilton v. DILHR, 94 Wis. 2d 611, 288 N.W.2d 857 (1980); Walker v. DILHR (Snap-On-Tools) (Dane Co. Cir. Ct., 12/06/77).

In situations where a DILHR examiner hears conflicting testimony and makes findings based upon the credibility of witnesses, and the Commission thereafter reverses the examiner and makes contrary findings, the record should affirmatively show that the Commission had the benefit of the examiner's personal impressions of the material witnesses. This may take the form of either adequate notes of the examiner or personal consultation with him. The demands of due process cannot be satisfied with anything less. Braun v. Industrial Comm., 36 Wis. 2d 48, 153 N.W.2d 81 (1967).

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797 Appeal and Review; Judicial review

A "newly discovered evidence"-based request for rehearing under Wis. Stat. § 227.49, and a motion to set aside, modify or change a decision under Wis. Stat. § 111.39(5)(c), both apply only to requests made after the final decision of the agency (LIRC) has been issued. They do not apply to asking LIRC to order further hearing in the course of its review. Once a petition for LIRC review is filed, an administrative law judge loses power to act in a case and cannot act on a motion for rehearing. However, LIRC's general review authority includes authority to order further hearing on grounds of newly discovered evidence - but in this case, evidence about an employment action occurring three years after the employment action was complained of, did not involve sufficient parallels to allow the conclusion that it would change the result in the case. Hafeman v. County of Sauk (LIRC, 04/04/14)

Case law has established that Ch. 227, Stats., limits judicial review to final agency orders. In this case, the Complainant contended that LIRC exceeded its authority when it remanded the case for further hearing on the ground that the Respondent had established good cause for failing to appear at the original hearing. LIRC's decision was not a final order. If, after the further hearing, the agency's final order was adverse to the Complainant, he could at that time seek judicial review of both LIRC's good cause determination and its determination on the merits. Deering v. LIRC, No. 2011AP803, unpublished slip op. (Wis. Ct. App. March 15, 2012) (unpublished authored opinion; see, Rule 809.23(3)(b))

The Complainant's petition for judicial review was dismissed where it was filed one day late. The Complainant apparently read sec. 227.53(1)(a)2., Stats., to mean that he had one month from the issuance and mailing of the LIRC decision in which to file his petition for review. However, the statute says, '30 days,' which is not the same as one month. Failure to strictly comply with the statutory requirement cannot be excused. Benthein v. LIRC (Manitowoc Co. Cir. Ct., 11/30/11).

The Complainant's employer appeared as a party in the administrative proceeding, and it was listed as a party in LIRC's memorandum decision.  Accordingly, the Complainant was required to serve either the employer or its attorney with a copy of her petition for judicial review within 30 days after she instituted a circuit court proceeding.  The Complainant had three options to effect service:  (1) personal service, (2) service by certified mail, or (3) service by first class mail if such service was timely admitted in writing.  In this case, the Complainant failed to serve the Respondent properly when she served its attorney by first class mail without securing an admission of service.  The Complainant's petition for review was dismissed.  Johnson v. LIRC and Wheaton Franciscan Health Care (Ct. App., Dist. I, unpublished decision, 12/09/08).

Parties are not entitled to the appointment of legal counsel in Chapter 227, Stats., court review cases.  Bedynek-Stumm v. LIRC (Dane Co. Cir. Ct., 10/10/08).

The circuit court has no power to deal with allegations of perjury (which are allegations of a crime) in the context of a Chapter 227, Stats., review.  Bedynek-Stumm v. LIRC (Dane Co. Cir. Ct., 10/10/08).

A circuit court may not dismiss a petition for judicial review because it does not show the nature of the petitioner's interest or state a ground for relief under sec. 227.57, Stats., unless the petitioner has notice of the possibility of dismissal and a reasonable opportunity to request leave to amend the petition. Jackson v. LIRC, 2006 WI App 97, 293 Wis. 2d 332, 715 N.W.2d 654.

An agency decision is final if it conclusively determines the further legal rights of the person seeking review.  Preliminary or interlocutory proceedings are excluded from judicial review in order to prevent administrative proceedings from being constantly interrupted and shifted between the administrative agencies and the courts.  In this case, the Labor and Industry Review Commission denied a request (made on issue preclusion grounds) to dismiss a complaint,  and it remanded the case to the Equal Rights Division for further review on the merits.  That LIRC decision was not final and, therefore, it was not subject to judicial review.  Kimberly Area Sch. Dist. v. LIRC and Betters, 2005 WI App 262, 288 Wis. 2d 542, 707 N.W.2d 872.

The petitioner’s use of facsimile transmission to present his petition for review to the circuit court did not constitute substantial compliance with the statutes for filing. Sec. 801.12(2), Stats., allows individual counties to accept facsimile transmissions only for papers that do not require a filing fee. This action required a filing fee. Ficken v. LIRC (Dane Co. Cir. Ct., 09/16/03).

The requirements for administrative appeals are unyielding. The petitioner argued that he missed deadlines in filing and serving his petition for review because he resides in Romania. Wisconsin’s state procedural statutes do not depend on the location of the litigant. It was up to the petitioner to make arrangements to expedite his notification of the decision from the Labor and Industry Review Commission and to timely file any appeal. Ficken v. LIRC (Dane Co. Cir. Ct., 09/16/03).

A petitioner’s failure to serve a petition for review on non-agency parties prevents the circuit court from acquiring subject matter jurisdiction. In this case, the court lacked jurisdiction because the Complainant failed to send a copy of his petition for review to the Respondent, although he did send a copy of the petition for review to LIRC. Josellis v. LIRC (Ct. App. Dist. IV, summary affirmance, 08/22/03).

The Complainant filed a petition for review in circuit court within the time limits set out in the notice of appeal rights sent to him by the Labor and Industry Review Commission. However, he did not serve LIRC until four days after the time limit expired. Because the petition was served on the Commission late, the court lacked subject matter jurisdiction to decide the appeal. Reed v. LIRC (Milw. Co. Cir. Ct., 08/18/03).

A court reviewing an administrative agency decision may not make an independent determination of the facts. The court is limited to determining whether there is substantial evidence of record to support the agency’s findings. Knight v. LIRC (Dane Co. Cir. Ct., 05/15/03).

A reviewing court may not make credibility determinations on administrative review. Knight v. LIRC (Dane Co. Cir. Ct., 05/15/03).

The circuit court does not have jurisdiction or competency to review an administrative agency decision unless there is strict compliance with the requirements of the Wisconsin statutes. There is no authority permitting a circuit court to extend the time limits for serving and filing a petition for review. Cardinal TG Co. v. LIRC (Monroe Co. Cir. Ct., 06/29/01).

The circuit court does not have subject matter jurisdiction where the appealing party failed to serve a copy of the petition for review upon LIRC, personally or by certified mail, within thirty days of LIRC’s decision. Sark v. LIRC (Dane Co. Cir. Ct., 06/21/00).

The decisions of Administrative Law Judges of the Equal Rights Division under the Wisconsin Fair Employment Act are the final decisions of the Department. They are reviewed by the Labor and Industry Review Commission only if a petition for review is filed. Polesky v. United Brake Parts (LIRC, 08/30/96).

The Labor and Industry Review Commission is an independent agency which is "attached" to the Department of Industry, Labor and Human Relations, of which the Equal Rights Division is a part for administrative and budgeting purposes only. (See, sec. 15.225, Stats.). The decisions of the Equal Rights Division are issued by that agency, out of its separate offices. LIRC has no involvement with and no control over the procedures followed by the Equal Rights Division with respect to its preparation and service of decisions or transcripts. Moreno v. Wisconsin Elec. Power Co. (LIRC, 06/21/96).

Service of process of an administrative appeal must be by personal service or by certified mail. Where an appealing party attempted to serve process by first class mail, the appeal was dismissed. South Side Spirit v. LIRC (Milw. Co. Cir. Ct. 06/01/93).

The Wisconsin Supreme Court has applied three levels of deference to conclusions of law and statutory interpretation in agency decisions. First, if the administrative agency's experience, technical competence and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to "great weight." The second level of review is a mid-level standard that provides if the agency decision is "very nearly" one of first impression it is entitled to "due weight" or "great bearing." The third level of review is de novo and is applied when the case is clearly one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 493 N.W.2d 68 (1992).

Sec. 227.53(1), Stats., requires serving a petition for review personally or by certified mail upon the agency within thirty days after the date the agency decision is mailed. Where the Commission mailed its decision on November 15, 1991, and the Complainant's petition for review was mailed via first class mail in an envelope postmarked December 17, 1991, service on the agency was untimely. Also, where the Complainant's petition was not filed in the clerk's office until January 13, 1992, even if the Complainant mailed it on December 16, 1991, and even if it was received on December 18, 1991, as the Complainant contended, filing is not complete until receipt and the Complainant's petition was therefore untimely filed as well. Guel v. LIRC (Ct. App., Dist. II, summary decision, 12/09/92).

Complainant waived his claim of error based on the exclusion of certain evidence at hearing because he failed to raise that issue in his appeal to LIRC. It is the decision of LIRC which the court reviews, not the decision of the ALJ.  Issues not challenged in a petition for review before LIRC are considered waived.  With respect to another evidence exclusion issue (which was apparently preserved by being raised to LIRC),  where the court did find points in the record where testimony was not allowed by the ALJ, the Complainant's claims of error are rejected because he did not make offers of proof as to the substance of the testimony which would have been provided if permitted.  Where a party claims an error based on the exclusion of testimony, it is the responsibility of that party to make an offer of proof.  Without an offer of proof, the reviewing court cannot determine if the exclusion of the evidence was prejudicial.  Horner v. LIRC (Dane Co. Cir. Ct., October 1, 1992).

Sec. 227.48(2), Stats., requires that administrative agencies give notice of appeal rights, including any right to rehearing and other administrative review and judicial review. The time limitation for filing a petition for review is tolled if the proper notice is not given. Thus, where the notice given to a Complainant did not comply with the requirements of the statute, the 30-day time period for filing a petition for review did not begin to run and the Complainant's petition for review, which was filed more than 30 days following the Department's decision, was timely filed. Alexander v. DILHR, (Ct. App., unpublished decision, 1991).

The petitioner did not comply with the statutory deadline requiring filing and service of a petition for review within 30 days of LIRC's decision where he arrived at the clerk of court's office after the close of business hours and had the petition time stamped at 6:43 p.m. on that date. Documents or petitions which are received after closing will be treated as having been filed on the following day. Leaving the petition for review in a conspicuous place in LIRC's offices after hours, likewise, did not constitute personal service on the agency or its officials. Watson v. LIRC (Ct. App., unpublished decision, 08/22/91).

Sec. 227.53, Stats., requires that a petition for review to the circuit court be made personally or by certified mail within 30 days, commencing on the day after the decision is mailed. Ordinary first-class mail does not satisfy the statutory requirement of personal service or certified mail. Joseph v. LIRC (Ct. App., unpublished decision, 06/25/91).

A decision of the Labor and Industry Review Commission concluding that it has jurisdiction to review a ruling of an Administrative Law Judge is not a final administrative decision subject to judicial review. Associated Schools, Inc. v. LIRC (Ct. App., unpublished decision, 03/21/91).

On judicial review, the Court determines if substantial evidence supports the findings of fact of the Commission. The Court will not place great weight on or give special deference to the findings of the examiner. Rucker v. LIRC (Milwaukee Co. Cir. Ct., 07/07/88).

The Commission reversed the dismissal of a complaint and remanded the matter for further hearing, and the employer filed a petition for judicial review of that order by the Commission. The Commission's order of remand sought to be reviewed was not an appealable order subject to judicial review. The continued prosecution of that petition for judicial review was frivolous. In addition to dismissing the petition for judicial review, the Court ordered the employer to pay the Complainant his actual attorney's fees in opposing the petition for judicial review. Best Foods Unit of CPC North America v. LIRC (Dane Co. Cir. Ct., 06/08/87).

A non-final order of the Commission (in this case, an order remanding a matter for hearing after a finding that the Complainant had demonstrated good cause for failing to appear at the first scheduled hearing date) is not subject to judicial review. Larsen Co. v. DILHR (Brown Co. Cir. Ct., 10/28/85).

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799 Appeal and Review; Miscellaneous

The Labor and Industry Review Commission is not a court of equity. It is a legislative creation which lacks the authority to disregard a statutory scheme in order to achieve what it may perceive to be a more equitable result. Alarcon v. Avenue Bar (LIRC, 12/28/12).

On appeal, the Labor and Industry Review Commission affirmed an ALJ decision finding that the Respondent had unlawfully discriminated against the Complainant. However, because the Complainant did not make a specific, supported request for any further attorney's fees in connection with the review by LIRC, the Commission did not order any additional fees. Lundstad v. Management Computer Support (LIRC, 02/21/12).

A claim that a person has committed perjury is a criminal matter and, consequently, it is a matter over which neither the Equal Rights Division nor the Labor and Industry Review Commission has any authority.  Bedynek-Stumm v. State of Wisconsin (LIRC, 02/08/08).

On appeal to the Labor and Industry Review Commission, the Complainant referenced certain information which she alleged was improperly presented to, and was improperly relied upon by, the Equal Rights Division investigator. However, upon appeal from an investigator's initial determination of no probable cause, a de novo proceeding is conducted by an Administrative Law Judge. As a result, the type of defect in the investigative process alleged would not affect either the Equal Rights Division's or the Labor and Industry Review Commission's disposition of the charge. Bock v. Shopko Stores (LIRC 08/16/06).

A party who cannot read English, or who does not read English well, has an obligation to have documents translated. In this case, the Complainant was able to file a complaint, to read or have translated the initial determination, and to take appropriate action to file a timely appeal. She was also able to read or have translated the Administrative Law Judge's dismissal order, and she filed a timely petition for review. There was no reason to believe that the Complainant was not capable of understanding, or gaining understanding of, the hearing notice, not withstanding her lack of facility with English. Her failure to do so did not provide her with good cause for missing the hearing. Accordingly, the dismissal of her complaint was affirmed. Further, the Labor and Industry Review Commission denied the Complainant's request that it issue its decision in this matter in Spanish. If the Complainant had difficulty reading the decision of the Commission, it was her obligation to have it translated. Hernandez v. Sara Lee Corp. (LIRC, 05/21/04).

There is no provision in the Wisconsin Fair Employment Act that would allow parties to skip the administrative hearing and proceed directly to review by the Labor and Industry Review Commission. The Commission reviews the findings and order issued by the Administrative Law Judge. It provides a second level of administrative review. Hinkforth v. Bricklayers & Allied Craftsmen Dist. Council (LIRC, 02/23/04).

An administrative decision must include notice of any right of appeal and the time allowed for filing an appeal. Where the Complainant did not receive notice of appeal rights with the decision from the Labor and Industry Review Commission, the 30-day time period for appealing did not begin to run until the Commission sent the Complainant the proper notice. Josellis v. LIRC (unpublished decision, Ct. App. Dist. IV, 08/22/03).

The Labor and Industry Review Commission’s authority may not be expanded by stipulation of the parties. The Commission is not an arbitration panel which is available to rule on any issue which two parties agree to submit to it. Therefore, LIRC will not accept an appeal of a non-final decision relating to a portion of the case before the Equal Rights Division even though the Respondent indicated that it did not object. Woodford v. Norwood Health Center (LIRC, 05/11/01).

Decisions by Administrative Law Judges of the Equal Rights Division are final decisions of the Department. They are reviewed by LIRC only if a petition for review is filed. Polesky v. United Brake Parts (LIRC, 08/30/96).

Even if LIRC substituted its findings for that of the Administrative Law Judge, this would not constitute a due process violation. The ultimate responsibility for finding facts is on the Commission, not on the Administrative Law Judge. Hoell v. LIRC, 186 Wis. 2d 608, 522 N.W.2d 234 (Ct. App. 1994)

If a complainant had not authorized his attorney to enter into a settlement on his behalf, or to dismiss his complaint with prejudice on his behalf, then the Complainant's remedy was to attempt to prove malpractice by that attorney. The Labor and Review Commission is not the appropriate tribunal to determine whether the obligations of attorney to client were properly complied with. Johannes v. County of Waushara Executive Committee (LIRC, 11/01/93).

The Labor and Industry Review Commission is only required by its rules to rely on a transcript when the transcript has been prepared before the Administrative Law Judge's decision was issued. Where the transcript has been prepared after that point, consideration of it is discretionary. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).

The Complainant's attorney argued that LIRC should reverse the Administrative Law Judge's award of significantly less in attorney's fees than she had sought. This did not constitute a valid petition for review as contemplated by the statute, since the attorney is neither a Complainant nor a Respondent in this matter. In this case, it was obvious that Complainant's attorney took this appeal without the knowledge and consent of the Complainant. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).

LIRC may take jurisdiction of a case for the limited purpose of dismissing the complaint based upon the parties' settlement. It was clearly the parties' intent that their obligations should be defined not by the Administrative Law Judge's order but by their settlement agreement. Carey v. DeBoer, Inc. (LIRC, 06/11/92).

The Complainant's assertion in a petition for review of an Administrative Law Judge's decision that her attorney failed to provide her with proper legal representation was not an adequate basis for setting aside the Administrative Law Judge's decision or for granting a rehearing. Neuberger v. Twin Cities Storm Sash Co. (LIRC, 01/22/92).

Where the Commission remands a case to the Equal Rights Division for further hearing, the Administrative Law Judge should conduct a hearing and make further findings, which will then be subject to review by the Commission. It is uncertain whether the Commission has the authority to remand the case for further hearing, but without a further decision from the Administrative Law Judge, so that the Commission could make its own decision based upon the record made before the Administrative Law Judge. Pohlen v. General Electric Co. (amended order, LIRC, 04/26/91).

The requirement in sec. 111.39(4)(d), Stats., that the Department shall serve a "certified copy" of the findings and orders on the parties does not relate to questions of whether a petition for LIRC review has been timely filed so as to appropriately invoke the Commission's jurisdiction, since sec. 111.39(5), Stats., merely requires that a petition be filed within 21 days from the date "a copy" of the decision is mailed. LIRC expressed no opinion whether the Department's failure to serve certified copies of decisions would affect the enforceability of those orders in court under sec. 111.39(4)(d), Stats. Mundy v. Iselin Catering (LIRC, 08/08/90).

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