Employment – discrimination — judicial review

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Wisconsin Court of Appeals

Civil

Employment – discrimination — judicial review

Duane C. Deering, Jr., seeks judicial review of an order of the Labor and Industry Review Commission (LIRC) regarding his employment discrimination claim against Beverly Enterprises-Wisconsin, Inc. The LIRC decision determined that Beverly had good cause for its failure to attend the hearing before the administrative law judge (ALJ) at which the ALJ had determined that Beverly had discriminated against Deering. Accordingly, the LIRC order set aside the ALJ’s order and remanded for a further hearing on the merits with Beverly’s participation. Deering filed a petition in the circuit court under Wis. Stat. ch. 227 (2009-10)[1] for judicial review of LIRC’s order and a petition for a writ of prohibition to prevent a further hearing. The circuit court dismissed both petitions on the primary ground that LIRC’s order was not final.

Deering appeals the circuit court’s order dismissing his petitions for judicial review and for a writ of prohibition. We conclude the circuit court properly dismissed the petition for judicial review because LIRC’s order was not final, Deering does not have a due process right to judicial review at this time, and any procedural errors in the circuit court were harmless. We also conclude the circuit court properly exercised its discretion in dismissing the petition for a writ of prohibition. In arriving at this conclusion, we reject Deering’s contention that LIRC does not have the authority to order a further hearing on the merits of his discrimination claim and his contention that the judicial review provisions of Wis. Stat. ch. 227 do not provide an adequate remedy. Accordingly, we affirm. Not recommended for publication in the official reports.

2011AP803 Deering v. Labor and Industry Review Commission, et al.

Dist IV, Adams County, Pollex, J., Vergeront, J.

Attorneys: For Appellant: Covelli, Claude J., Madison; Hazen, Rhonda R., Madison; Cetrangolo, Catherine, Madison; For Respondent: Moriarty, Richard B., Madison; Hughes, William E., III, Milwaukee