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COURT OF APPEALS DECISION DATED AND FILED November 20, 2008		NOTICE
		This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Appeal Nos.

2008AP578 2008AP579

Cir. Ct. Nos. 2007SC11421

STATE OF WISCONSIN	IN COURT OF APPEALS
	DISTRICT IV

MATHEW E. LEVIN, PLAINTIFF-APPELLANT, V. GASS & RIEGERT AUTO COMPLEX, INC., DEFENDANT-RESPONDENT.

APPEALS from judgments of the circuit court for Dane County: MARYANN SUMI, Judge. Affirmed.

¶1 HIGGINBOTHAM, P.J.⁽¹⁾ Mathew E. Levin appeals the dismissal by the circuit court of two wage claim cases for alleged nonpayment of overtime and vacation pay.⁽²⁾ The court concluded that Levin's claims could not be heard because he had already pursued them with the State of Wisconsin Department of Workforce Development (DWD) and failed to file an administrative appeal when DWD denied the claims. Levin argues that he is entitled to pursue his claims in state court despite failing to appeal DWD's decision. Because we conclude that the circuit court did not erroneously exercise its discretion in precluding Levin's state court claims under the doctrine of exhaustion of administrative remedies, we affirm the circuit court's judgment.

¶2 Matthew Levin is a former employee of Gass & Riegert Auto Complex ("Gass"). In mid-2007, Levin filed a complaint with DWD alleging that Gass owed him vacation and overtime pay. On August 14, 2007, DWD issued a decision letter denying Levin's claim and informing him that he could submit further information regarding his work status to challenge the determination.

¶3 On August 21, 2007, Levin responded to the DWD letter, but did not provide proof requested by the investigator disputing his employment status or occupational classification. Levin also failed to supply information proving that Gass was in violation of its own policy regarding vacation pay for terminated employees. DWD reiterated its denial of Levin's claim in a letter dated August 27, 2007. The letter informed Levin that he could request administrative review of the determination in writing before September 5, 2007. Levin failed to request a review of that determination.

¶4 On October 3, 2007, Levin filed a claim for the same overtime and vacation pay with the Dane County Small Claims Court. That case was dismissed. Levin filed a timely Demand for Trial De Novo. Dane County Circuit Court Judge Maryann Sumi dismissed Levin's case for failure to exhaust administrative remedies. Levin appeals.

¶5 Levin appears to argue that the circuit court erred in dismissing his claims for failure to exhaust administrative remedies because his request for a trial de novo required the circuit court to hold a trial on his claim. Levin is mistaken. WISCONSIN STAT. § 799.207(3)(a) provides the right to a trial de novo before the circuit court following receipt of a judgment by the small claims court commissioner. However, the statute does not entitle the appellant to a trial on the merits, when, as here, a prudential doctrine such as exhaustion of administrative remedies applies and thereby prevents the court from reaching the merits. The same rules that apply to any circuit court case apply to cases arising under the trial de novo procedure. Thus, a pretrial motion to dismiss may be granted when, as here, the plaintiff has filed an administrative action arising from the same facts but failed to exhaust his remedies available under the administrative procedure. Such a result promotes order in the judicial process, prevents multiple suits on the same issue and encourages judicial economy. See County of Sauk v. Traeger, 118 Wis. 2d 204, 211-12, 346 N.W.2d 756 (1984).

¶6 Levin also argues that he was entitled to pursue his state court claim because WIS. STAT. § 109.03(5)⁽³⁾ permits a worker to file a claim in state court without first filing a claim with DWD under WIS. STAT. § 103.02. While it is true that WIS. STAT. § 109.03(5) gives a worker the option to file in state court without first filing an administrative claim, see German v. DOT, 223 Wis. 2d 525, 589 N.W.2d 651 (Ct. App. 1998), the statute does not provide the right to file in state court after the worker files a DWD claim but fails to exhaust his remedies under WIS. STAT. § 103.02. Once Levin filed his administrative claim with DWD, he was required to exhaust the procedure available to him at the agency before filing a separate state court claim.

¶7 "The exhaustion doctrine is typically applied when a party seeks judicial intervention before completing all the steps in the administrative process." Metz v. Veterinary Examining Bd., 2007 WI App 220, ¶13, 305 Wis. 2d 788, 741 N.W.2d 244. Here, Levin chose to pursue the administrative remedy that was available to him but neglected to appeal DWD's denial of his claim with the agency. The circuit court therefore properly exercised its discretion in dismissing his case for failure to exhaust his administrative remedies. See State ex rel. Mentek v. Schwarz, 2001 WI 32, ¶9, 242 Wis. 2d 94, 624 N.W.2d 150 (treating circuit court's decision to apply exhaustion doctrine as discretionary).

¶8 Finally, Levin takes issue with the circuit court's reliance on Hubbard v. Messer, 2003 WI 145, 267 Wis. 2d 92, 673 N.W.2d 676, which was cited for the proposition that once an administrative agency proceeding is initiated, the remedy available in that proceeding must be exhausted before a state court remedy may be sought. While we agree that this statement of law is not found in Hubbard, it is found in Metz, as noted above. The circuit court's citation of the wrong case for the right principle does not warrant reversal.

By the Court.--Judgments affirmed.

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)(4).

¹  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2005-06).

²  Levin brought separate cases for overtime pay and for vacation pay in Dane County Circuit Court Case Nos. 2007SC11421 and 2007SC11422, respectively. We have consolidated these cases for disposition.

³  WISCONSIN STAT. § 109.03(5) provides, as pertinent:

Each employee shall have a right of action against any employer for the full amount of the employee's wages due on each regular pay day as provided in this section and for increased wages as provided in s. 109.11(2), in any court of competent jurisdiction. An employee may bring an action against an employer under this subsection without first filing a wage claim with the department under s. 109.09(1).