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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 749-762.2     

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749 Dismissals for failure to state a claim upon which relief may be granted.  

There is no summary judgment procedure under the Wisconsin Fair Employment Act.  However, in appropriate circumstances, an Administrative Law Judge may dismiss a complaint prior to hearing where, even if what is claimed by the Complainant is true, there would be no violation of the Act as a matter of law.  The authority to dismiss a complaint without hearing only extends to circumstances where it appears that, based upon the assertions in the complaint, there is simply no way the Complainant could prevail.  Orders of dismissal may be granted, for example, in cases where the conduct alleged to be discriminatory was not covered under the Act.  However, where a complaint contains allegations which, if proven, would be covered under the Act, a dismissal prior to hearing is inappropriate.  McCullum v. Lutheran Home (LIRC, 05/23/08).

The Administrative Law Judge improperly determined prior to hearing that the Complainant had no competent medical evidence to offer and would be unable to prove the theory of his case without such evidence. The Administrative Law Judge granted the Respondent’s motion to dismiss the complaint prior to hearing. Dismissal of a complaint prior to hearing is appropriate only in cases where, based upon the assertions in the complaint, there is simply no way that the Complainant could prevail. To require the Complainant to not only state a cognizable claim, but also to disclose prior to hearing what proof he intends to offer, and to have the Administrative Law Judge assess whether this proof will be sufficient to sustain his burden, goes beyond the authority of an Administrative Law Judge to dismiss a charge for failure to state a claim. Such an approach would permit an Administrative Law Judge to avoid the due process safeguards inherent in the administrative hearing process by deciding the merits of a contested case without an evidentiary record. Salinas v. Russ Darrow Group (LIRC, 8/31/07).

In deciding whether a complaint states a claim under the Wisconsin Fair Employment Act, the complaint is the starting point. Additional assertions made by the Complainant may then be looked at to the extent necessary to provide details concerning claims already alleged in the complaint. In this case, the complaint was somewhat indefinite as to when certain acts allegedly occurred, and as to who was involved in those acts. However, the nature of the claim could be clarified by looking at position statements and materials which the Complainant submitted to the Equal Rights Division during the course of the investigation. A review of these materials indicated that the complaint did state a claim for relief under the Wisconsin Fair Employment Act. Therefore, it was inappropriate for the complaint to be dismissed for failure to state a claim. Garner v. UW-Milwaukee (LIRC 02/10/06).

Dismissal of a complaint prior to hearing is appropriate where, even if the facts alleged by the Complainant were proven, they would not amount to a violation of the law. However, a motion to dismiss for failure to state a claim should not be granted unless there are no circumstances under which relief could be granted. Cases in which it has been found that there were no circumstances in which the Complainant could prevail based upon the allegations in the complaint have generally involved situations in which the conduct alleged to be discriminatory was not covered under the Wisconsin Fair Employment Act. Sabol v. UW-Eau Claire (LIRC 01/31/06).

The complaint was properly dismissed for failure to state a claim for relief under the Wisconsin Fair Employment Act even when the Complainant’s complaint and his assertions that he was sexually harassed were construed in the light most favorable to him.  The Complainant conceded that the incidents complained of were not of a sexual nature.  Instead, he indicated that the incidents complained of were nothing more than horseplay.  Mroczkowski v. Belmark, Inc. (LIRC, 04/28/05).

There is no mandatory requirement under sec. DWD 218.05, Wis. Adm. Code, that an Administrative Law Judge hold a hearing. Watt v. Fedex Ground Package System (LIRC, 08/31/04).

An Administrative Law Judge has the authority to dismiss a complaint sua sponte. However, this authority only extends to instances where it appears that, even if what the Complainant claims is true, a decision in favor of the Respondent would be required by law. A motion to dismiss for failure to state a claim should not be granted unless there are no circumstances under which relief could be granted. Reddin v. Neenah Joint School Dist. (LIRC, 08/24/04).

A motion to dismiss for failure to state a claim upon which relief can be granted should not be granted unless there are no circumstances under which relief could be granted. Jackson v. Milwaukee Area Technical College (LIRC, 07/16/03).

A complaint is subject to dismissal if it fails to satisfy a subject matter jurisdiction requirement; if it fails to satisfy the statute of limitations; or if it fails to state a claim upon which relief may be granted, regardless of the outcome of the investigation. The fact that the investigator found probable cause does not entitle the Complainant to a hearing if the complaint is subject to dismissal for one of the foregoing reasons. Lau v. Latec Credit Union (LIRC, 02/07/03).

A complaint will be dismissed for failure to state a claim upon which relief may be granted if, even if what is claimed by the Complainant is true, the Complainant cannot prevail as a matter of law. The fact that the investigator found probable cause does not entitle the Complainant to a hearing under these circumstances. Lau v. Latec Credit Union (LIRC, 02/07/03).

A complaint may be dismissed prior to hearing on a motion to dismiss for failure to state a claim upon which relief may be granted if it appears that, even if what is claimed by the Complainant is true, a decision in favor of the Respondent is nevertheless required as a matter of law. Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

An administrative agency has only those powers expressly conferred or reasonably implied from its statutory grant of authority. The administrative agency is not a court of equity and may not grant relief on that basis, no matter how compelling. Accordingly, the Labor and Industry Review Commission rejected the Complainant’s contention that it should deny a motion to dismiss based upon the equities present in the case, in particular the financial hardship the Complainant's unemployment caused for his family. Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

Administrative Law Judges have the authority to dismiss complaints without hearing where that action would be legally justified even if the facts were as asserted by the Complainant. Castiglione v. Giesen & Berman (LIRC, 06/25/97).

While an administrative law judge may hold a hearing to allow the parties to establish facts which may have a bearing on whether the complaint should be dismissed, this determination may also be made based upon the documents and affidavits presented by the parties, pursuant to sec. ILHR 218.10, Wis. Adm. Code. Newton v. St. Gregory Educ. and Christian Formation Comm. (LIRC, 12/10/97). [Ed. note: sec. 218.10, Wis. Adm. Code, is now sec. DWD 218.10, Wis. Adm. Code].

There is no sense in conducting a hearing on a complaint where the facts alleged, even if proven, do not amount to a violation of law upon which relief can be predicated. Dunn v. City of Burlington Eng'g. Dept. (LIRC, 07/28/95).

An Administrative Law Judge may dismiss a complaint prior to hearing if it appears that, even if what the Complainant claims is true, a decision in favor of the Respondent is required by law. In making this decision, the Administrative Law Judge should look only at what the Complainant alleges and any other assertions of the Complainant which provide an indication of the nature of the claim. Schaefer v. New Berlin Realty (LIRC, 06/10/93).

No authority exists under the Administrative Procedure Act, the WFEA or the Division's rules to entertain motions for summary judgment of the kind authorized in actions or proceedings in court by sec. 802.02(2), Stats. There is no procedure whereby a Respondent, merely by filing a motion and supporting affidavit which disputes material facts alleged by a Complainant, can somehow force the Complainant to file responsive affidavits or risk having the case dismissed on the version of the facts advanced by the Respondent. However, in appropriate circumstances, an ALJ may dismiss a complaint prior to hearing where it appears that even if what is claimed by the Complainant is true, there would be no violation of the Act as a matter of law. Making such a determination involves simply looking at what the Complainant asserts he will prove. This can be accomplished by looking at what the Complainant alleges and to any other assertions by the Complainant which provide an indication of the nature of the claim. Jacobs v. Glenmore Distilleries Co. (LIRC, 11/25/92).

In response to the Respondent's claim that the work relationship between the Complainant and the Respondent is shielded by the Federal and State Constitutions from Division intrusion, the Division held an evidentiary jurisdictional hearing. Jocz v. Sacred Heart School of Theology (LIRC, 08/17/92).

In determining whether it was appropriate to dismiss a complaint prior to hearing on the basis that it was untimely, an Administrative Law Judge could only review the Complainant's assertions. It was improper to consider a Respondent's affidavit as to when the communication of the employe's seniority date occurred. Because the documents which could be considered (i.e., those containing the Complainant's asser-tions) were inconclusive, the timeliness issue could not be resolved without a hearing. Valeri v. Delco Electronics--General Motors (LIRC, 07/17/92).

The Department may, in appropriate circumstances, dismiss a complaint prior to a hearing when it appears that even if what is claimed by the Complainant is true, a decision in favor of the Respondent is required as a matter of law. Generally in such cases the decision will be made by looking to the allegations of the complaint, but other allegations made by the Complainant may be taken as indications of the Complainant's assertions as to the facts. In this case, assertions made by the Complainant to the Equal Rights investigator, sworn testimony of the Complainant given in a discovery deposition, assertions made by or on behalf of the Complainant by way of affidavit submitted in response to a motion to dismiss, and assertions made by counsel for the Complainant in written argument submitted in response to a motion to dismiss were all considered. Tucker v. Rock County (LIRC, 07/02/92).

A Respondent may move to dismiss a complaint prior to hearing if it believes that even the facts asserted by the Complainant require as a matter of law that the complaint be dismissed. Olson v. Lilly Research Laboratories (LIRC, 06/25/92).

As a general matter, any prehearing determination as to the legal adequacy of a charge of discrimination should be made by reference to the complaint, and not by reference to assertions made in subsequent affidavits or other collateral sources submitted by the party seeking dismissal. However, the particular circumstances of a case may justify looking beyond the narrow confines of the complaint. Where the Complainant has intentionally omitted information from the complaint which is necessary to determine whether the complaint meets the requirements of a preliminary review under sec. Ind 88.03, Wis. Adm. Code, it is appropriate to look to any reliable collateral sources for that information. In this case, it was appropriate to rely upon a discovery deposition of the Complainant and factual assertions in the Complainant's brief. Olson v. Lilly Research Laboratories (LIRC, 06/25/92).

The Wisconsin Administrative Procedure Act does not provide explicitly for a summary judgment procedure. However, since sec. 227.42(1)(d), Stats., provides that an eviden-tiary hearing in a contested case is only required when "[t]here is a dispute of material fact," if it can be determined that there are no disputed issues of material fact, the Personnel Commission can issue a decision without an evidentiary hearing in what amounts functionally to a summary judgment proceeding. Balele v. UW- Madison (Wis. Personnel Comm., 06/11/92).

Where a co-employe had a sexual relationship with the Complainant's spouse, and the Complainant alleged essentially that the relationship adversely affected his employment and led to his termination, the dismissal of the complaint was upheld on the grounds that even if the facts alleged were deemed true this would not constitute marital status discrimination as a matter of law. Miner v. LIRC (Rock County Cir. Ct., 04/07/92).

The Equal Rights Division does not have authority to entertain motions for summary judgment of the kind that are authorized by sec. 802.08, Stats. An Administrative Law Judge may, in appropriate circumstances, dismiss a complaint prior to hearing when it appears that even if what is claimed by the Complainant is true, there would be no violation of the Wisconsin Fair Employment Act. However, making such an analysis involves simply looking at what the Complainant asserts he will prove. There is no procedure whereby a Respondent, merely by filing an affidavit which disputes material facts alleged by the Complainant, can force the Complainant to file responsive affidavits or risk having the case decided on the version of the facts advanced by the Respondent. Alvey v. Briggs & Stratton (LIRC, 11/27/91).

The Complainant did not state a claim for relief for retaliation under the Wisconsin Fair Employment Act where she alleged that the Respondent retaliated against her for filing a prior charge of discrimination by asking her a series of personal and allegedly irrelevant questions during a deposition. It would be going beyond a fair liberal construction of the Wisconsin Fair Employment Act to hold that "terms, conditions or privileges of employment," encompasses an employer's line of questioning at a deposition taken in connection with the employe's civil service appeal of a disciplinary action. Larsen v. Department of Corrections (Wis. Personnel Comm., 07/11/91).

The Complainant filed a complaint of handicap discrimination based upon the Respondent's removal of its uncorrected vision standard, under which the Complainant had qualified for certification to the list of people to be considered for a conservation warden position. The complaint did not constitute a claim under the Wisconsin Fair Employment Act, but the Complainant was given thirty days to amend the complaint to allege that the Respondent's deletion of the uncorrected vision standard was motivated by an intent to discriminate. Wood v. DNR (Wis. Personnel Comm., 05/18/89).

Where the gist of the complaint was that the Respondent discharged the Complainant on the basis of false reports made to the Respondent by others, and where the complaint failed to allege that the false reports concerned or were motivated by the Complainant's religious beliefs, that the Respondent knew or believed that the complaining individuals disliked the Complainant's religious beliefs, or that the employer itself shared any dislike others may have held for his religious beliefs, the complaint failed to state a claim upon which relief could be granted on a theory of religious or creed discrimination. Hallingstad v. A. B. Dick Products (LIRC, 11/05/87).

Where the Complainant was denied employment as a truck driver because he was too large to be accommodated in the cab of the truck, the hearing examiner properly dismissed the complaint without conducting a hearing on the grounds that the Complainant was not handicapped within the meaning of the Act. Because the complaint failed to state a claim upon which relief could be granted under the Fair Employment Act, the examiner was within his authority to dismiss the complaint prior to the hearing. Rick v. Fore Way Express (LIRC, 07/25/85).

Failure to submit a timely answer does not justify summary judgment for Complainant where the employer had stated its position at previous stages in the complaint process. Bullock v. Milwaukee County (LIRC, 10/15/82).

DILHR has the authority to dismiss a complaint at any stage of the proceedings before it, whether at the request of a party or upon its own motion, for failure to state a claim upon which relief may be granted. Lambert v. DILHR (AMC) (Dane Co. Cir. Ct., 07/25/77).

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750 Role of Administrative Law Judge

751 Generally

It is not the Administrative Law Judge?s responsibility to conduct an investigation into the facts of the case. The Administrative Law Judge?s job is to consider the evidence presented by the parties at the hearing and, based upon that evidence, to decide whether the Complainant has met his or her burden of establishing a violation of the Wisconsin Fair Employment Act. Stumpf v. Goeden Transport (LIRC, 12/23/09).

It is the role of the Administrative Law Judge to assess whether a Respondent honestly believes the reasons that it has advanced for a disciplinary action or whether those reasons are a pretext for discrimination. It is not the role of the Administrative Law Judge to supply post hoc a reason the Respondent never thought to advance. To the extent that the ALJ decided the Complainant?s retaliation claim in this case on a basis never previously disclosed to her nor litigated by the parties at the hearing, this was improper. Gephart v. Department of Corrections (LIRC, 11/18/09).

The Complainant?s assertion that the Administrative Law Judge was supposed to provide the information in the case file at the hearing was rejected. The ALJ will only consider evidence presented at the hearing. Robinson v. Pfister, LLC (LIRC, 04/09/10).

The fact that the Administrative Law Judge started the hearing by making sweeping rulings about what evidence was ?relevant? to the case made it clear that as far as he was concerned the slate was not blank and that, instead, he had brought to the hearing a well-formed and predetermined idea about what the facts of the case were. This created a significant appearance of unfairness. It is not possible for a judge to make informed and non-arbitrary rulings about what evidence may or may not be relevant in a case unless and until the judge has some idea about what the facts of the case are, or what they are claimed to be. Burton v. United Govt. Serv. (LIRC, 03/02/10).

The Equal Rights Division routinely provides the parties with a copy of its rules prior to hearing, along with information on how to access a copy of the Equal Rights Division Decision Digest.  Further exposition by the Administrative Law Judge with respect to hearing procedures and legal standards prior to the hearing is neither necessary nor appropriate.  Cappelletti v. OceanSpray Cranberries, Inc. (LIRC, 02/15/08).

Factors to be considered in determining whether an Administrative Law Judge adequately protected the rights of a party not represented by counsel include: (1) whether there was a full opportunity for the unrepresented party to develop his case on direct and cross examination; (2) whether a full and fair hearing was provided; (3) whether it was clear that the party had notice of the issues to be considered at the hearing and an opportunity to present evidence on those issues; (4) whether the unrepresented party understood and was able to hear and participate in the hearing and understand the evidence offered; and (5) whether the Administrative Law Judge was impartial. Ramada Inn v. LIRC (Eau Claire Co. Cir. Ct., 06/03/03).

Chapter 227.46(1)(e), Stats., provides that hearing examiners may regulate the course of the hearing. Clark v. Plastocon (LIRC, 04/11/03).

The hearing examiner was not obligated to elicit testimony from a Respondent where the Complainant was given ample opportunity to do so at the hearing, and appeared to understand that no further testimony could be presented after the hearing was closed. Heinz v. JoJo's Restaurant (LIRC, 04/18/84).

An unrepresented Complainant is not entitled to have the hearing examiner act as her attorney, but only to assist her by explaining matters of evidence and procedure. Cole v. University of Wis. (Wis. Personnel Comm., 01/13/81).

An examiner should be commended rather than criticized for adducing necessary jurisdictional evidence for the record even after the employer had moved to dismiss upon completion of the Complainant's case. State ex rel. Badger Produce v. MEOC (Dane Co. Cir. Ct., 09/02/80).

There is no requirement that DILHR notify the parties who the hearing examiner will be prior to the hearing. Carignan v. Schlitz Container (LIRC, 06/22/79).

An employe's contentions that the hearing examiner failed to assist him and that he was denied due process because of his lack of fluency in English were not supported by the record. It was discretionary with the hearing examiner whether or not to appoint an interpreter for a Complainant. Kropiwka v. DILHR, 87 Wis. 2d 709, 275 N.W.2d 881 (1979).

DILHR may delegate its authority to administer the Act without the need for official action, and the departmental hearing notice was sufficient to apprise an employer that a hearing examiner had been delegated authority to hear the evidence and judge the merits of a discrimination complaint. State ex rel. G. E. v. DILHR, 68 Wis. 2d 688, 229 N.W.2d 597 (1975).

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752 Disqualification of Administrative Law Judge

An ALJ?s procedure of insisting that offers of proof be made by submission in writing after the hearing created an unfortunate appearance of arbitrariness. A judge should actually have a basis for concluding that evidence should not be allowed. If the ALJ does not know what the evidence is, it can appear that he does not have such a basis. Burton v. United Govt. Serv. (LIRC, 03/02/10).

Due process is violated if a decision-maker is not fair or impartial. There does not need to be a showing of actual bias by a decision-maker in order to show a violation of due process. Circumstances which lead to a high probability of bias may be sufficient to establish a violation of due process, even though no actual bias is revealed in the record. Burton v. United Govt. Serv. (LIRC, 03/02/10).

There is a presumption of honesty and integrity on the part of Administrative Law Judges. However, this presumption is not conclusive. A showing of special facts and circumstances may demonstrate that the risk of unfairness in a particular case is intolerably high. This may involve showing that the adjudicator had become psychologically wedded to a pre-determined disposition of the case. Determining whether an administrative law judge has prejudged a matter requires an examination of the facts of the individual case. There was an appearance of lack of impartiality by the Administrative Law Judge in this case. The Administrative Law Judge had a personal connection with counsel for the Complainant. The Administrative Law Judge also improperly received into evidence the decision of another Administrative Law Judge which had been previously set aside by the Labor and Industry Review Commission. The Administrative Law Judge?s comment that he was deferring to the first ALJ?s decision ?out of fairness to a colleague? made it appear that the appellate process had been ignored. This created an intolerably high risk of unfairness in this particular case. The ALJ?s rulings excluding evidence also created a significant appearance of unfairness. Burton v. United Govt. Serv. (LIRC, 03/02/10).

Persons who serve as decision-makers in state administrative proceedings enjoy a presumption of honesty and integrity. A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. In this case, the Administrative Law Judge may have erred in excluding a document that the Complainant wished to enter into evidence. However, there was no reason to believe that the Administrative Law Judge held any bias against the Complainant. The Administrative Law Judge attempted to assist the Complainant at the hearing by asking him questions in an effort to help him to present his case. Williams v. Salvation Army (LIRC, 10/19/07).

There is a presumption of honesty and integrity on the part of those persons performing administrative adjudicatory functions. Anyone alleging bias by an Administrative Law Judge bears a heavy burden of overcoming this presumption. Jackson v. USF Holland (LIRC 11/17/06).

Decisionmakers in state administrative proceedings enjoy a high presumption of honesty and integrity.  A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption.  In this case, the Complainant asserted, among other things, that the Administrative Law Judge’s knowledge that the Complainant had filed a grievance against her with the Office of Lawyer Regulation (OLR) relating to her handling of this matter would necessarily cause her to be biased against the Complainant.  However, permitting a litigant to effect the disqualification of an Administrative Law Judge who has ruled against her by simply filing a grievance against the ALJ with the OLR would violate the integrity of the administrative process.  In the absence of other indicia of a cognizable personal or financial interest, or of conduct evidencing a lack of objectivity (which was not present here) the existence of an OLR grievance would not justify recusal of an Administrative Law Judge under the circumstances presented in this case.  Casetta v. Zales Jewelers (LIRC, 06/14/05).

In order to disqualify an Administrative Law Judge in a proceeding before the Equal Rights Division, a party must provide and establish an actual reason for the judge’s disqualification.  Both sec. DWD 218.16, Wis. Adm. Code, and sec. 227.46(6), Stats., provide that the party seeking the disqualification must file a timely and sufficient affidavit asserting personal bias or other reason for disqualification of the ALJ.  The Complainant in this case failed to file such an affidavit.  She simply made a written request for the substitution of the Administrative Law Judge without stating any reason for such a request.  The Complainant did argue to the Administrative Law Judge that sec. 801.58, Stats., which allows a party a one-time ability to substitute a presiding Circuit Court judge without demonstrating a reason for such a request, was applicable to the hearing process in the Equal Rights Division.  However, that statute cannot be applicable because the procedure is in direct conflict with the Division’s administrative rules and Ch. 227, Stats., which govern hearing procedures before the Division.  Lenz v. Humana Ins. (LIRC, 04/28/05).

The Complainant contended that, because the Respondent was under contract with the Wisconsin Department of Corrections, a state agency, the Administrative Law Judge, as a state employee, had a conflict of interest.  However, the Administrative Law Judge was not shown to have any personal stake in the outcome of this litigation, and his status as a state employee was insufficient alone to support a conclusion of bias or an appearance of bias.  The potential pecuniary impact of the outcome of litigation such as this on any individual state employee would be too speculative and de minimis to constitute either a cognizable conflict or an appearance of a conflict of interest.  Carbage v. Genesis Behavior Serv. (LIRC, 04/15/05).

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).

An Administrative Law Judge should attempt to avoid creating the appearance that he has prejudged the matter before him. Lee and Stark v. Fitzpatrick Law Office (LIRC, 08/12/03).

A party’s disagreement with the Administrative Law Judge’s rulings and decision is not a sufficient basis upon which to disqualify an Administrative Law Judge. Bedynek-Stumm v. City of Madison (LIRC, 06/27/03).

A party who believes it is not getting a fair hearing should nonetheless attempt to put in its best case while preserving its objections on the record should it become necessary to file an appeal. Where the Complainant abandoned the hearing without putting in his entire case, his procedural objections were waived. Clemons v. Opportunities Industrialization Center of Greater Milwaukee (LIRC, 02/14/03).

A party who fails to persuade an Administrative Law Judge to remove himself must proceed to hearing with that Administrative Law Judge, and then raise the Administrative Law Judge’s failure to remove himself as grounds for appeal in the event of an unfavorable decision. If a party refuses to proceed with the hearing and the complaint is dismissed for that reason, the claim that the denial of the substitution request was made in error must be considered to have been abandoned. Clemons v. Opportunities Industrialization Center of Greater Milwaukee (LIRC, 02/14/03).

A minimal rudiment of due process is a fair and impartial decision-maker. There is, however, a presumption of honesty and integrity on the part of those persons performing administrative adjudicatory functions, and any challenger bears a heavy burden of overcoming this presumption. The challenger must show "special facts and circumstances to demonstrate that the risk of unfairness is untolerably high." Odya v. Captain Install, Inc. (LIRC, 05/19/00).

The Labor and Industry Review Commission is generally unpersuaded by allegations of bias on the part of the ALJ which are raised by a party only after the hearing has resulted in a decision adverse to that party. Eliason v. County Market (LIRC, 11/30/93).

A party who fails to persuade an Administrative Law Judge to remove himself must proceed to hearing and may later raise the ALJ's failure to remove himself as grounds for appeal in the event of an unfavorable decision. If the party refuses to proceed with the hearing and the complaint is for that reason dismissed, the claim that the denial of the substitution request was error is abandoned. Young v. Valley Pkg. Industries (LIRC, 04/27/92).

Due process requires that a hearing examiner be fair and impartial. Actual bias or unfairness need not be shown. The test to be applied is whether the circumstances are such that the risk of partiality or unfairness on the part of the examiner is too high to be constitutionally tolerable. Local 322, Allied Indus. Workers of Am. v. Johnson Controls, Inc. (LIRC, 03/30/92).

The timing of the Complainant's affidavit for disqualification of the examiner suggested that the Complainant's motion was motivated by disagreement with the examiner's ruling rather than by some bias on the part of the examiner. Generally, a litigant should not be able to accept a judge initially as satisfactory and then subsequently, during the course of the litigation, seek to disqualify him because the litigant has gained an impression from the rulings of the court that the court's attitude towards his position is unfavorable. Asadi v. UW-Platteville (Wis. Personnel Comm., 01/24/92).

A litigant is entitled to a fair and impartial judge, but is not entitled to pick his judge. Asadi v. UW-Platteville (Wis. Personnel Comm., 01/24/92).

Persons who serve as decision-makers in state administrative proceedings enjoy a presumption of honesty and integrity. A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. Vaisman v. Aldridge, Inc. (LIRC, 10/21/91).

The Complainant waived her right to contend that the Administrative Law Judge was biased where she did not raise that issue by filing an affidavit of personal bias or disqualification with the Administrative Law Judge prior to the decision being issued. Alexander v. Aldridge, Inc. (LIRC, 10/21/91), aff'd., Milwaukee Co. Cir. Ct., 01/27/93.

In determining whether the chairperson of the Personnel Commission should be disqualified from hearing a case, the Personnel Commission looked to the general rule governing disqualification of a quasi-judicial administrative official as set forth in Am Jur 2d Administrative Law 64. The test is whether the administrative officer has a personal or pecuniary interest, or whether he is related to an interested person. Cozzens-Ellis v. UW-Madison (Wis. Personnel Comm., 02/26/91).

An Administrative Law Judge should recuse himself if he determines that he cannot be impartial in a matter or if his impartiality could reasonably be questioned by others because of an appearance of bias on his part. Phillips v. Milwaukee County Medical Complex (LIRC, 09/27/89).

Where the Administrative Law Judge: (1) asked the Complainant at the commencement of the hearing whether she carried a gun; and (2) made negative comments about the quality of the Complainant's representation, there was an appearance of bias serious enough to warrant disqualification. Phillips v. Milwaukee County Medical Complex (LIRC, 09/27/89).

Where an Administrative Law Judge has been found to have engaged in bias, LIRC will engage in a completely independent reevaluation of all of the evidence and made a de novo determination of all the issues in the case. Phillips v. Milwaukee County Medical Complex (LIRC, 09/27/89).

A mere showing of antagonism or a strained relationship between counsel and the Administrative Law Judge is not a sufficient basis to require the disqualification of the Administrative Law Judge. Phillips v. Milwaukee County Medical Complex (LIRC, 09/27/89).

The administrative rule concerning disqualification of Administrative Law Judges requires the filing of a written affidavit setting forth the basis for requesting disqualification. Even if an unsworn oral request is treated as adequate, it must still be made in a timely fashion. Young v. Pic N' Save Warehouse Foods (LIRC, 06/12/86).

The fact of an examiner's marriage to the investigator who issued the initial determination of no probable cause is not grounds for reversal where there is no evidence or allegation of impartiality, or any reason to believe that another examiner would have decided the case differently. However, the Commission noted that the examiner should have disqualified himself. Hammes v. Rainfair, Inc. (LIRC, 09/28/84).

The test of an examiner's impartiality is whether the particular circumstances of a given case are such that the risk of partiality or unfairness by the examiner is too high to be constitutionally tolerable. The standard applicable to an examiner presiding at an administrative hearing is the same as that which applies to a Circuit Court Judge. The existence of a strained relationship between the examiner and a party's attorney was not sufficient to require the examiner's disqualification, although she had exhibited a great deal of hostility toward counsel in the presence of his client. Kane v. LIRC (Bellin Memorial Hospital) (Brown Co. Cir. Ct., 02/18/83).

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760 Procedures at Hearing

761 Parties' right to representation; questions relating to conduct of attorneys

The actions or inactions of a Complainant’s attorney, even if erroneous, are imputed to the Complainant. Where the actions of an attorney adversely impact a Complainant who retains that attorney, the actions by the attorney do not provide a basis for granting further hearing. Amos v. McDonald’s (LIRC, 05/25/07).

Steps should be taken to ensure that unrepresented litigants understand the rules relating to proceedings before the Equal Rights Division. Nevertheless, they will be held to those rules, which are the same rules that apply to attorneys. Rutherford v. LIRC (Milwaukee Co. Cir. Ct., 11/03/06).

It is appropriate to impute the procedural errors of a party’s representative to the party.  In this case, the failure of a party’s attorney to file an initial brief for almost five months after the due date, with no valid excuse, and where there would be prejudice to the other party, warranted disregarding the brief.  Nickell v. County of Washburn (LIRC, 07/29/05)

The Complainant asserted on appeal that she did not appear for her hearing because she could not find a lawyer who would take her case.  While the Complainant may have preferred to have an attorney represent her at the hearing, representation by an attorney is not a matter of right under the Equal Rights Division’s rules.  In instances where a party does not appear by counsel or other representative, it is the role of the Administrative Law Judge to see that the party’s case is properly developed.  Therefore, the Complainant did not show good cause for her failure to appear at the hearing.  Whitt v. Alterra Wynwood of Madison West (LIRC, 07/15/05)

Clients are responsible for the actions of their legal counsel. Cleary v. Federal Express (LIRC, 07/30/03); aff'd sub nom. Federal Express v. Patrick Cleary et al. and Patrick Cleary v. LIRC et al. (Waukesha Co. Cir. Ct., March 18, 2004).

Factors to be considered in determining whether an Administrative Law Judge adequately protected the rights of a party not represented by counsel include: (1) whether there was a full opportunity for the unrepresented party to develop his case on direct and cross examination; (2) whether a full and fair hearing was provided; (3) whether it was clear that the party had notice of the issues to be considered at the hearing and an opportunity to present evidence on those issues; (4) whether the unrepresented party understood and was able to hear and participate in the hearing and understand the evidence offered; and (5) whether the Administrative Law Judge was impartial. Ramada Inn v. LIRC (Eau Claire Co. Cir. Ct., 06/03/03).

If a party chooses to proceed without legal counsel, it is held to the same standards of proof as if they were represented. The law is no different for those who appear pro se than for those who appear with representation. Ramada Inn v. LIRC, (Eau Claire Co. Cir. Ct., 3/12/03).

The Complainant stated that he was misinformed about the hearing date by his attorney. Any misinformation that the Complainant received regarding the date of his hearing originated with the Complainant’s attorney, and was not due to any fault on the part of the Respondent or the Administrative Law Judge. The actions by the attorney do not provide a basis for setting aside the dismissal of the case. The Complainant has a possible remedy in a malpractice action, particularly when the dismissal of the complaint is entirely attributable to the attorney’s conduct. Hamilton v. Northwestern Elevator Co. (LIRC, 12/10/02).

It is necessarily implied from the Personnel Commission’s general authority to regulate the conduct of hearings that the Commission can prohibit a representative from practice when his conduct interferes substantially with the conduct of the hearing. Sathasivam v. Dept. of Corrections (Wis. Personnel Comm., 07/31/02).

An allegation of negligence on the part of an attorney does not warrant tolling the statute of limitations. Johnsrud v. Prairie du Chien Memorial Hosp. (LIRC, 06/21/02).

While it is unfortunate if the Complainant received inadequate legal representation, that is not a basis for setting aside the Administrative Law Judge’s decision. It is more equitable to allow the adverse consequences of poor legal representation to fall upon the shoulders of the party who has chosen the attorney, rather than on the opposing party. The Complainant has the possible remedy of a malpractice action against the attorney. Squires v. Montex, Inc. (LIRC, 03/15/02).

The Respondent’s decision to appear pro se is a matter for which he must bear the consequences. The Equal Rights Division issued a hearing notice two months prior to the hearing, along with an information sheet advising the parties that if they planned on having legal representation they should obtain an attorney immediately, since attorneys need time to prepare a case for hearing. Mackey v. ICR, Ltd. (LIRC, 01/31/02).

The Complainant’s failure to properly serve subpoenas did not establish good cause for a postponement of the hearing. The error may have been attributable to the fact that the Complainant was not an attorney and did not understand the applicable procedural requirements as readily as an attorney might. However, parties who choose to represent themselves accept certain risks attendant with their decision to proceed without assistance of counsel. Oriedo v. Madison Area Tech. College (LIRC, 07/24/98).

The Labor and Industry Review Commission will not address issues concerning an attorney's professional competence and responsibility or the effects of unethical conduct on contractual obligations, since these issues are not within its statutory authority. Nealy v. Miller Compressing Co. (LIRC, 09/19/95), Summers v. Northwest Airlines (LIRC, 05/26/00).

Inadequate legal representation is not an adequate basis for setting aside an Administrative Law Judge's decision or for a granting re-hearing. Patek v. Waukesha Engine Div., Dresser Indus. (LIRC, 08/31/95).

The Labor and Industry Review Commission is not in a position to determine whether an alleged conflict of interest may have required the withdrawal of the Complainant's counsel. Such questions would be more appropriately addressed to the Board of Attorneys' Professional Responsibility. Brunswick v. Emergency Services of Door County (LIRC, 12/08/94).

The Complainant objected to the Respondent being represented by out-of-state counsel. The Administrative Law Judge determined that the Division's rules allow an out-of-state attorney to practice before the Division. Even if the attorney's appearance at the hearing was in violation of the provisions of sec. 757.30, Stats., which governs the practice of law in Wisconsin, this would not constitute grounds for a reversal of the Administrative Law Judge's decision because the Complainant did not establish probable cause to believe that he was discriminated against. Dolk v. Marquette Electronics (LIRC, 07/11/94).

The Complainant's attorney could not reasonably rely on representations regarding the applicable statute of limitations made by the Respondent's attorney. The Complainant's attorney had an obligation to look up the statute of limitations and determine through independent research whether he was required to exhaust internal grievance procedures before filing a complaint under the Wisconsin Fair Employment Act. Perri v. DILHR (LaCrosse Co. Cir. Ct., 04/25/94).

The Complainant had ample opportunity to retain legal counsel and his failure to do so was not grounds for a postponement of the hearing. The Complainant contended that he learned the night before the hearing that the individual who was assisting him with his case did not have a license to practice law. However, sec. Ind 88.16(2), Wis. Adm. Code, provides that a party may appear at the hearing in person and "by counsel or other representative." Thus, even if the Complainant did have a representative without a license to practice law, this individual was not prevented from appearing on the Complainant's behalf. Jenkins v. Pfister & Vogel Tanning Co. (LIRC, 03/22/94).

On appeal, the Complainant asserted that he failed to prevail on his complaint of discrimination because his attorney was incompetent. Even if the Complainant's assertion was true, it would not provide a basis for reversing the Administrative Law Judge's decision. This is a matter between the Complainant and his attorney. Barnes v. A.C. Rochester (LIRC, 03/24/94).

Where counsel for the Complainant made an argument which assumed the agency had authority to control withdrawal of counsel from representation, Complainant's counsel could not later argue that such authority did not exist. Complainant's counsel was, therefore, admonished to abide by an order that she not withdraw from representation of the Complainant without express approval of the tribunal before which the Complainant's claim was pending. Saccomandi v. E. Pocus and Co. (LIRC, 09/09/93).

An Administrative Law Judge can only limit a party's choice of representative for a compelling reason. The right to appear by a representative under Ind 88.16(2), Wis. Adm. Code, is unqualified. Jackson v. City of Milwaukee Public Library (LIRC, 12/14/90).

No party has the right to advance notice whether the opposing party will be represented by an attorney at hearing. Duarte- Vestar v. Goodwill Industries (LIRC, 11/09/90).

At the commencement of the hearing, the Complainant informed the Administrative Law Judge that his attorney was unavoidably delayed in returning to Wisconsin from out of state. The Complainant advised the Administrative Law Judge that they could either await the attorney's arrival or proceed without him. The hearing proceeded and the Complainant presented his own testimony. The Administrative Law Judge then granted the Respondent's motion to dismiss. The subsequent motion to vacate the proceedings filed by counsel for Complainant was without merit. Stoffel v. Briggs & Stratton (LIRC, 09/20/89).

Parties who choose to represent themselves accept certain risks attendant with their decision to proceed without assistance of counsel. Hammer v. G.E. Medical Systems (LIRC, 08/29/89).

The Complainant's claim that his attorney provided inadequate representation at the hearing is not a basis for reversing the Administrative Law Judge's decision or for ordering further hearing on appeal. McCabe v. All-Car Automotive (LIRC, 07/31/89).

The complaint was dismissed and the Complainant's attorney was ordered to pay the Respondent's attorney's actual costs and attorney's fees incurred due to the Complainant's failure to comply with discovery requests. If the Complainant's attorney was to blame for the failure to respond to the discovery requests, as the Complainant argued on appeal, the Complainant's remedy would be a suit for malpractice against the attorney, not a reversal of the dismissal of his complaint. Smith v. Norris Adolescent Center (LIRC, 04/21/89).

Parties who chose to represent themselves in an Equal Rights administrative proceeding accept certain risks attendant with their decision which do not rise to the level of a due process concern. Thus, Complainant here had no due process right to have additional evidence considered in her appeal before the Commission, which she had not submitted at hearing, simply on the grounds that she was not represented by an attorney at hearing. Johnson v. Wisconsin Lutheran Child and Family Services (LIRC, 09/09/86).

Although representation by legal counsel would have been helpful to the Complainant, the hearing examiner did give him a full opportunity to develop his case. When the Complainant decided to relieve his attorney prior to the hearing and proceed without counsel, he did so at his own risk. Kropiwka v. DILHR, 87 Wis. 2d 709, 275 N.W.2d 881 (1979).

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762 Evidence

762.1 Evidence, Generally

Expert testimony is mandatory only where the matter at issue is not within the realm of ordinary experience and lay comprehension. In this case, the question of whether earrings for males is a commonly accepted social norm is the type of question which is within the realm of ordinary experience. A decision-maker is not required to ignore his or her personal observations in issuing decisions. Vernon v. Wackenhut Corp.(LIRC, 10/18/11).

One risk of an overly stringent approach to questions of relevance is that, in the event of an appeal of the Administrative Law Judge?s decision, evidence which the Labor and Industry Review Commission might find relevant and might wish to consider will have been excluded from the record, thereby impairing the Commission?s ability to carry out its role as a de novo decision-maker. The procedure followed by an Administrative Law Judge of insisting that offers of proof be made by submission in writing after the hearing was not proper. The generally-accepted practice for making offers of proof is that counsel should be allowed to either make them in question-and-answer form (by asking the witness the questions and getting the answers) or by describing in summary form (also on the record) what the testimony would be. Burton v. United Govt. Serv. (LIRC, 03/02/10).

The Complainant alleged that his discharge was based upon race and that, had he been a white employee, he would not have been discharged for engaging in the same conduct.  In support of this assertion, the Complainant attempted to present comparative evidence showing that white employees had engaged in serious misconduct with lesser disciplinary consequences.  Comparative evidence is relevant in a disparate treatment case, and the appropriate question is not whether such evidence is admissible, but how much weight it should be given.  The Respondent's belief that the workers to whom the Complainant compared himself were distinguishable from the Complainant went to the strength of the Complainant's pretext argument.  It was not, however, a proper basis for excluding the evidence from the record.  Arvin v. C&D Technologies (LIRC, 10/31/08).

The Equal Rights Division is not bound by common law or statutory rules of evidence, including the hearsay rule.  However, in this particular case, the medical records which were introduced into the record over the Complainant's objection were not hearsay because they were not offered to prove the validity of the physician's medical opinion, but were instead offered to prove that this was information which the physician had provided to the Respondent.  Smith v. Mail Contractors of America (LIRC, 02/15/08).

Chapter 227, Stats., requires very relaxed rules of evidence for administrative hearings. An Administrative Law Judge is directed to admit evidence of reasonable probative value, and should exclude only evidence that is “immaterial, irrelevant or unduly repetitious,” or evidence that is inadmissible under a statute relating to HIV testing. Neither Ch. 227, Stats., nor the Department’s administrative rules relating to hearings require certified copies of medical records. Rutherford v. LIRC & Wackenhut, 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897.

In the proper circumstances, the failure of a party to present a material witness for evidence within their control permits an inference against that party.  In this case, it was inferred that the Respondent chose not to present the testimony of the individual who decided to discharge the Complainant because it would have tended to show that the reason he had given for discharging the Complainant was not accurate.  Cole v. Greyhound Bus Lines (LIRC, 09/16/05)

Pursuant to sec. 227.45, Stats., the Equal Rights Division is not bound by common law or statutory rules of evidence, including the hearsay rule.  Stichmann v. Valley Health Care Center (LIRC, 06/14/05).

For there to be a conclusion that an Administrative Law Judge erred by excluding evidence, there needs to be some indication as to what evidence it is claimed could have been presented but for that ruling. An offer of proof is the preferred method of providing that indication. Sasich v. City of Milwaukee (LIRC, 06/18/04).

Although hearsay evidence is admissible at hearing, an ultimate or crucial finding of fact may not be based solely on uncorroborated hearsay evidence. Merta v. Johnson Controls (LIRC, 10/30/03).

Failure to object to the receipt of evidence in a timely fashion constitutes waiver. Merta v. Johnson Controls (LIRC, 10/30/03).

Administrative bodies may not base findings on uncorroborated hearsay.  Crystal Lake Cheese Factory v. LIRC, 2002 WI App 290, 258 Wis. 2d 414, 654 N.W.2d 286; aff'd, Crystal Lake Cheese Factory v. LIRC and Catlin,  2003 WI 106, 664 N.W.2d 651.

An offer of proof should be placed on the record at the time the ruling excluding the evidence is made and there is a request to make an offer of proof. Fauteck v. Sinai Samaritan Medical Center (LIRC, 11/09/00).

If the Initial Determination is not received into the hearing record, it should not be considered in making factual findings. In any event, the hearsay indication of an investigator that a co-employe of the Complainant told her something would have no greater reliability than any other hearsay testimony. Schanandore v. Roddiscraft, Inc. (LIRC, 06/19/92).

The Administrative Law Judge properly refused to receive the Initial Determination in evidence as an exhibit. The Initial Determination is merely a hearsay document reflecting the conclusions of an investigator made after an ex parte investigation. Henchen v. County of Vernon (LIRC, 09/05/91).

It was improper for LIRC to rely upon the factual findings made in a consent decree when that consent decree was not properly admitted in evidence. The Complainant had agreed to the admission of the consent decree for the limited purpose of (a) showing that a consent decree was issued, and (b) that the Respondent was abiding by the consent decree. LIRC inappropriately relied on factual findings in the consent decree to conclude that the consent decree was justified by an underutilization of minorities in the Respondent's workforce. Samolinski v. LIRC and County of Milwaukee (Milw. Co. Cir. Ct., 06/27/91).

There is no reported authority in Wisconsin recognizing the appropriateness of calling an attorney as an expert witness on an issue of law which is an issue for the judge in the case. Opinions on a question of law are actually no more than arguments. Arguments should be presented as such, not in the guise of "expert testimony" from attorneys sworn as witnesses. Therefore, the Commission will not consider the testimony of an assistant attorney general who was called as an expert witness on the question of whether the Complainant's conviction for armed robbery was substantially related to his job as a juvenile correctional worker. Collins v. Milw. County Civil Service Comm. (LIRC, 03/08/91).

It is improper for an Administrative Law Judge to rely on matters outside of the hearing record as a basis for a finding of fact. Joseph v. Central Parking (LIRC, 08/20/90).

If the Initial Determination is not received into the hearing record, it should not be considered by the Administrative Law Judge in making factual findings. Joseph v. Central Parking (LIRC, 08/20/90).

Where documents which were given to the investigator are not presented and received into the record, the Administrative Law Judge has no authority to reach into the file to consider those matters. Beach v. Best Buy (LIRC, 10/26/89).

Directly relevant evidence received in another case was properly disregarded by the Administrative Law Judge in reaching a conclusion that the Complainant had failed to prove discrimination, even though the same Administrative Law Judge had found the Respondent to have discriminated against the Complainant in a companion case. Rodgers v. Milwaukee County (LIRC, 09/19/88).

The Division cannot base crucial or essential findings upon hearsay testimony alone. Hunt v. City of Madison (DILHR, 02/11/75).

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762.2 Admissibility

Testimony offered not for the truth of the matter asserted but instead for the purpose of showing what the employer believed, and thus what motivated the employer in making an employment decision, is not hearsay. In this case, the ALJ properly allowed testimony from the Respondent's witnesses when such testimony was not offered for the truth of the matter, but was offered as an explanation of what the Respondent's witnesses had been told or what they understood had occurred and, thus, what motivated their actions in the employment decisions they made relating to the Complainant. Barnes v. Miller Brewing Co. (LIRC, 05/14/12).

It was not error for the Administrative Law Judge to refuse the admission of the Respondent?s counsel?s response to the investigator into the record. The attorney?s statement about why the Complainant was not considered for employment was hearsay. Further, the attorney may have misunderstood the facts, or simply have not been in possession of all the facts at that point in his involvement in the case. The attorney?s response did not identify any specific personnel of the Respondent as the source of the statement he provided. Nor did the attorney?s response provide any reason to conclude that a manager?s later testimony about the reason the Complainant was not considered for employment was false. Jackson v. USF Holland (LIRC, 02/25/09).

An Administrative Law Judge improperly refused to allow the Respondent to offer and move the Complainant's discovery deposition into evidence.  Sec. 804.07(1)(b), Stats., states that the deposition of a party may be used by an adverse party for any purpose.  Engen v. Harbor Campus (LIRC, 02/22/08).

In order for the attorney-client privilege to apply, a party has to satisfy the following three-part test: (1) The communication must be between a client and his attorney, (2) the communication must be confidential in nature, and (3) the communication must be made for the purpose of facilitating legal services. Absent any of the three criteria, there is no privilege. In this case, the Administrative Law Judge improperly sustained the Respondent’s objections to testimony between the Respondent’s attorney and an alderman on the grounds of attorney-client privilege. The alderman was overheard telling the Respondent’s attorney that, “We’ll fire that motherfucker if he files that claim,” referring to the Complainant’s filing a complaint under Ch. 109 of the Wisconsin Wage Payment Act. The Respondent did not establish that this statement was made for the purpose of facilitating legal services. Gunty v. City of Waukesha (LIRC, 03/29/07).

An Administrative Law Judge may consider evidence consisting of an employer’s testimony about statements made to them by a third-party declarant if they are offered not to prove the truth of the matter asserted by the declarant, but as evidence of what the employer believed and, thus, what motivated the employer in making a challenged decision.  Stichmann v. Valley Health Care Center (LIRC, 06/14/05).

Sec. 804.07, Stats., does not allow the Complainant to use his own discovery deposition to support factual assertions in his brief. It is only the adverse party (in this case, the Respondent), that is free to use the opposing party's deposition for any purpose. Greco v. Snap-On Tools (LIRC, 05/27/04).

"Hearsay" is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted. In employment discrimination cases, the important question is the motivation of the person making the challenged decision (specifically, whether they were motivated by an impermissible factor such as race, sex or age). Evidence about something a decision-maker was told by another person can be important in understanding what the decision-maker's motive was, and it is appropriate for it to be considered for that purpose. Therefore, it is acceptable to consider evidence consisting of an employer's testimony about statements made to them by a third-party declarant, not to prove the truth of the matter asserted by the declarant, but as evidence of what the employer believed and, thus, what motivated them in making a challenged decision. Kleinsteiber v. Eaton Corp. (LIRC, 03/15/04).

The Administrative Law Judge properly admitted statements made by third parties which were offered in evidence not to prove the truth of their contents, but to prove that the person who heard them believed and relied upon them in making a subsequent, challenged employment decision. Cook v. Community Care Resources (LIRC, 01/13/03).

Where a declarant’s statement is offered for the fact that it was said, rather than for the truth of its content, it is not hearsay. Potts v. Magna Publications (LIRC, 02/27/01).

The Administrative Law Judge properly admitted written "feedback forms" regarding the Complainant into the record. These forms were prepared by a number of mentors and trainers who had been working with the Complainant prior to her termination. The forms were admissible as records of regularly conducted activity under sec. 908.03(6), Stats. An adequate foundation for the receipt of these documents was provided by the evidence that it was a regular business practice of the Respondent to have such feedback forms prepared, and that they are used in the regular course of Respondent’s business as a training tool. McGee v. Society’s Assets (LIRC, 02/13/01).

In a sexual harassment case, testimony by the Complainant’s coworkers that their supervisor, who was accused of sexual harassment, had acted inappropriately towards them could not be used to show the supervisor’s proclivity for bad conduct or bad character. However, this testimony was relevant and admissible for purposes of establishing a generally hostile work environment. Harsh v. Co. of Winnebago (LIRC, 11/06/98).

Testimony regarding statements by a third-party declarant to the employer were not hearsay when offered only to show how the statements influenced the employer's beliefs as to what had happened, and not to prove the truth of the matter asserted. Voelz v. Kimberly-Clark (LIRC, 06/06/97).

While an administrative law judge may consider hearsay to which no objection has been made at hearing to the extent it has probative value, crucial or critical findings of fact should not be based on uncorroborated hearsay. Rutherford v. J&L Oil (LIRC, 06/06/97).

While the 300 day statute of limitations means that a Complainant may not seek a separate remedy for a wrong occurring more than 300 days prior to the filing of the complaint, it does not mean that evidence about that wrong may not be relevant to an allegation that another act, occurring within 300 days of the filing of the complaint, was discriminatory. Forster v. Abbyland Processing (LIRC, 03/22/95), aff'd. sub nom. Abbyland Processing v. LIRC and Forster, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996).

A Complainant who has been harassed on only a few occasions may be allowed to offer evidence of harassment suffered by other employes in order to show that harassment was pervasive. An employe can be intimidated or oppressed by witnessing an employer harass her co-workers, or by hearing about such behavior. Olson v. Servpro of Beloit (LIRC, 08/4/95).

Where statements made by third parties are offered in evidence not to prove the truth of their contents, but to prove what the person who heard them believed and relied upon them in making an employment decision, they are not inadmissible hearsay. Jones v. Milwaukee County (LIRC, 04/06/95).

Generally, where no objection is made to hearsay it is admitted as evidence and may be used as proof to whatever extent it may have rational persuasive power. Although an Administrative Law Judge may not base a finding solely on hearsay, the ALJ has the discretion to allow hearsay testimony at a hearing. Higgins v. Total Petroleum, Inc. (LIRC, 07/25/94).

A letter sent by an agent for the Respondent to the ERD investigator stating that the Complainant was not rehired when she applied for her old job back because it was discovered that she had falsified information on her employment application was not a binding admission, since it was not made in a formal discovery process. It was merely some evidence as to the reason for the challenged action. It is not necessarily error for an Administrative Law Judge to refuse to receive into evidence a letter from a representative of the Respondent to the investigator explaining why some challenged action was taken where that representative does not testify at the hearing. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

The Initial Determination should not be received as evidence at hearing because it is a hearsay document reflecting the conclusions of the investigator following an ex parte investigation. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

Where third party statements, whether or not the statements are true, are offered to demonstrate that the Respondent relied upon the statements to make a hiring decision, the third party statements are not inadmissible hearsay. Vandeveer v. Brown County (LIRC, 06/28/93).

The Administrative Law Judge properly admitted medical evidence obtained by the Respondent after the Complainant's termination. Meacham v. Sunburst Youth Homes (LIRC, 02/04/93).

Hearsay testimony received into the record without objection can be considered by the trier of fact to whatever extent it is found to have probative value. Campbell v. A.J. Sweet of Madison, Inc. (LIRC, 08/29/92).

Where hearsay evidence is not objected to at hearing, it may be used by the trier of fact as a basis for findings to whatever extent it is viewed as having probative value. Schanandore v. Roddiscraft, Inc. (LIRC, 06/19/92).

The Administrative Law Judge erred in rejecting an exhibit which both parties wished to have received into evidence. The Administrative Law Judge also erred in not receiv-ing the deposition of the Complainant. Sec. 804.07(1)(b), Stats., provides that the deposition of a party may be used at trial by an adverse party for any purpose. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).

Even though administrative proceedings are not bound by the same rules of evidence that govern trials, some evidentiary restrictions may apply, including those concerning hearsay not subject to a recognized exception. A document entitled "Entry Level Vision Requirements Validation Study" was properly excluded as hearsay. The document did not qualify as a scientific treatise under sec. 908.03(18), Stats., nor did it qualify as a public record or report under sec. 908.03(8), Stats. Brown County v. LIRC (Phillips & Grinkey) (Ct. App., Dist. III, unpublished decision, 02/27/90).

Hearsay testimony which is received into the record without objection can be considered by the trier of fact to whatever extent it is found to have probative value. Maline v. Wisconsin Bell (LIRC, 10/30/89).

The Commission reversed the Administrative Law Judge's ruling that testimony regarding events which occurred after the date the complaint was filed were inadmissible, where such evidence was relevant to the issue of whether the employer failed to take appropriate action within a reasonable time. Vervoort v. Central Paper (LIRC, 01/25/89).

Exclusion of testimony under sec. 804.12(2)(a)2, Stats. is proper where the Respondent failed to answer the Complainant's interrogatories regarding that testimony. Golden v. Heinen & Vernoski (LIRC, 12/29/88).

It was not error for the Administrative Law Judge to refuse to receive into evidence a letter written by counsel for the Respondent to the Equal Rights Division's investigator during the course of the investigation which outlined the position of the Respondent on why the Complainant was terminated. Tassotti v. LIRC (Kenosha Co. Cir. Ct., 02/23/88).

The Administrative Law Judge has discretion to allow hearsay testimony at a hearing, but no findings may be based on such testimony. Levanduski v. Visiting Nurse Ass'n. of Sheboygan (LIRC, 02/10/88).

Although a finding of retaliation was based on a hearsay statement to the effect that "the county does not hire people who are suing the county," the hearsay statement was within the exception provided in sec. 908.01(4), Stats. for statements of a party. The hearsay statement was made by an assistant to the County Executive, and the statement was made while he was so employed. Milwaukee County v. LIRC (Milwaukee Co. Cir. Ct., 12/16/87).

Where an earlier incident which resulted in the filing of a complaint of retaliation was thereafter resolved by a settlement agreement which provided that the Respondent did not admit any violation, that the Complainant would not sue the Respondent on the matters raised in the complaint, and that the agreement was to operate as the complete and final disposition of the complaint, the Commission would not consider evidence of the incident in a subsequent proceeding on another retaliation claim when the earlier incident was argued to be relevant. McKiernan v. Madison Metro Bus Co. (LIRC, 02/12/87).

Sec. 904.04, Stats., does not preclude the admission, in a proceeding concerning allegations of sexual harassment, of evidence that the accused harasser engaged in sexual harassment towards others on other occasions. Schwantes v. Orbit Resort (LIRC, 05/22/86).

Evidence of how a Complainant's replacement performed after he replaced the Com-plainant was not relevant. In determining whether there was a prohibited motivation in removing the Complainant from the position, the Commission looks only to the motivations leading up to that decision, not to what happened afterwards, since what happened after has no bearing on whether the decision was based on a discriminatory intent. Lyckberg v. LIRC (Dane Co. Cir. Ct., 03/25/86).

A hearing examiner has broad discretion as to what evidence to admit at hearing, and the scope of review is limited to abuse of discretion. Kasun v. LIRC (Kearney & Trecker) (Milwaukee Co. Cir. Ct., 11/05/83).

Where the employer introduced a doctor's letter as part of its exhibits, it waived whatever valid hearsay objection it may have had to the exhibit. Janz v. Jos. Schlitz Brewing (LIRC, 09/10/81).

A letter was rejected as evidence where it was written by a person who was available but who did not appear at the hearing. Baker v. Northern Sash (LIRC, 08/09/78).

Although the Equal Rights Division is not bound by the statutory rules of evidence, it may voluntarily apply such rules and accept an employe's admissions made within the scope of his employment. Appleton Elec. v. DILHR (Kreider) (Dane Co. Cir. Ct., 11/07/77).

Although hearsay documents should not be received at an administrative hearing where direct testimony is available, they may be used as proof to whatever extent they have rational persuasive power where an employer fails to object; and such failure prevents raising the objection on appeal to the circuit court. Olin v. DILHR (Hoadley) (Dane Co. Cir. Ct., 07/11/77).

Although hearsay is admissible at a hearing and the Wisconsin Supreme Court has not ruled on the extent to which administrative agencies may ground decisions on hearsay evidence, the Department cannot base "crucial" or "essential" finding upon hearsay alone. Hunt v. City of Madison (DILHR, 02/11/75).

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