The Wisconsin Equal Rights (ER) Decision Digest -- Sections 769-792
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769Procedures at hearing; Miscellaneous
The Respondent's motion to dismiss was properly granted where the Complainant abruptly left the hearing without presenting any evidence. A Complainant bears the burden of proof. The Complainant's failure to present any evidence establishes as a matter of law that there has been a failure of proof. Robinson v. Schlossmann's Imports (LIRC, 05/31/12).
An Administrative Law Judge may require a party to provide competent medical evidence to support its request for relief from an order on the ground of illness. However, there is no absolute requirement that a party requesting relief from an order on the ground of illness must provide medical evidence in support of that request. Johnson v. Roma Pizza II (LIRC, 02/25/09).
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).
The concept of conforming the pleadings to the proof is not applicable in administrative proceedings under the Wisconsin Fair Employment Act. Hanson v. Wisconsin Dept. of Transp. (LIRC, 06/14/05).
A party who disagrees with rulings rendered by an Administrative Law Judge prior to hearing is required to proceed to hearing, preserving her objections to such rulings on the record for review on appeal. If the Complainant instead refuses to proceed with the hearing due to her objections to the Administrative Law Judge’s rulings, and her complaint is dismissed as a result, the Complainant is deemed to have waived her objections to these rulings. Casetta v. Zales Jewelers (LIRC, 06/14/05).
Neither an Administrative Law Judge nor the Labor and Industry Review Commission have the authority to enforce a subpoena. Sec. 885.11, Stats.; Sec. 218.15, Wis. Adm. Code. The Complainant could have initiated a judicial action to enforce a subpoena where the potential witness failed to appear at the hearing. In order to justify conducting a continued hearing for the purpose of taking the witness's testimony, the Complainant would have had to demonstrate that the content of the witness's testimony would be sufficiently strong to reverse or modify the decision of the Administrative Law Judge. Josellis v. Pace Inds. (LIRC, 08/31/04).
While secs. 111.321 and 111.325 of the Wisconsin Fair Employment Act provide that no "person" may engage in an act of employment discrimination, the Act also expressly provides for employer liability for any financial remedies ordered as a result of a violation of the law "by an individual employed by the employer." Sec. 111.39(4)(c), Stats. Thus, individual supervisors acting as agents of the employer should not be named as separate respondents in discrimination complaints. Yaekel v. DRS Limited (LIRC, 11/22/96)
A Complainant was granted all of the procedural due process rights to which he was entitled in an administrative proceedings where he had an opportunity to present his case before an impartial Administrative Law Judge and to present witness testimony and documentary evidence on his behalf. Further, he was given ample notice to prepare for the hearing and to secure legal representation if he so desired. Jones v. Willowglen Academy (LIRC, 03/28/95).
Where the Complainant elected to leave the hearing without explanation prior to the conclusion of her testimony, the Department properly dismissed her complaint because the evidence in the record did not support a finding of probable cause. LIRC declined to remand the matter for further hearing where the Complainant did not demonstrate that she had been unable to proceed with the hearing as originally scheduled. Hale v. Hearthside Rehabilitation Center (LIRC, 02/08/94).
A Complainant continuously impeached his own credibility by asserting that he suffered from a mental illness which limited or destroyed altogether his ability to actually recall the alleged events in question. Jackson v. City of Milwaukee (LIRC, 10/28/93).
Allegations on appeal that the Administrative Law Judge appeared to be sleeping during the hearing must fail where (1) there was a disputed issue of fact as to the occurrence of the conduct, (2) the issue was waived by counsel's failure to make a timely objection to the Administrative Law Judge, and (3) even if true, the record was transcribed and the ALJ's decision was rendered on the complete record and briefs. Gronning v. School Dist. of Viroqua Area (LIRC, 07/28/93).
Where the Respondent has not shown that there was undue delay in holding the hearing and where it never objected because the matter was not scheduled for hearing earlier, its argument that it has been unfairly penalized by delays is without merit. Holbrook v. Coffee Systems (LIRC, 01/26/89).
An Administrative Law Judge could properly reject the Complainant's testimony as being incredible, where the Complainant acknowledged that she suffered from a mental illness which involved "relentless" auditory hallucinations and that she heard her supervisor "talking to her" at home. Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).
770 Record of Hearing, Decisions and Orders
771 Hearing Record; Transcripts
The decision of the Administrative Law Judge was set aside and the case was remanded to the Equal Rights Division for a new hearing where the testimony of the Complainant was not recorded and the Administrative Law Judge was not able to provide his own handwritten notes regarding the testimony. Dygon v. Smurfit Stone Container Corp. (LIRC, 02/28/07).
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).
The hearing transcript is not part of the decision which is issued by the Equal Rights Division. Moreno v. Wisconsin Elec. Power Co. (LIRC, 06/21/96).
The Labor and Industry Review Commission would not give consideration to a transcript of the hearing which was not prepared by an independent, reputable court reporter or transcriptionist and that did not include a certification by the transcriptionist that it was an original, verbatim transcript of the proceedings, as required by sec. ILHR 218.19(2), Wis. Adm. Code. Maxberry v. Aldridge, Inc. (LIRC, 05/28/96).
Because the Complainant brought a court reporter to the hearing for the purpose of transcribing the proceedings, the Administrative Law Judge was not obligated to electronically record the hearing. Lamkin v. Chronotype Publishing Co.. (LIRC, 07/21/95).
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).
The case was remanded for a new hearing where part of the original hearing was either not tape recorded, or the tape recording of that part of the hearing was either destroyed or lost. Saccomandi v. E. Pocus and Co. (LIRC, 09/09/93).
LIRC would not consider the partial transcripts filed by the Respondent since they were not a transcription of the entire hearing, and they lacked a sworn certification by the transcriptionist that they represented an accurate transcription of the taped record. The certification must be sworn and must represent that the person signing the certification was actually the transcriber, i.e., the person who transcribed the transcript. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).
The Commission will not consider a transcript which does not appear to be a verbatim record of the testimony given at the hearing. Crawford v. School Dist. of Beloit (LIRC, 11/08/91).
The hearing was held twice because of equipment malfunction. The Complainant asserted that the testimony of one of the Respondent's witnesses changed between the first and the second hearing. Even though the testimony of the first hearing was lost, the Complainant was not prejudiced since the Complainant's attorney had the opportunity to cross-examine that witness and could have attempted to impeach her prior testimony at the second hearing. Smith v. Root River Inn (LIRC, 08/21/91).
Parties are entitled to inspect and copy transcripts which are filed with the Equal Rights Division since they are public records. Duarte-Vestar v. Goodwill Indus. (LIRC, 11/09/90).
A court reporter was adequately appointed by the Department as required by sec. 111.39(4)(b), Stats., where: (1) the Equal Rights Division sent the parties a notice indicating that any party wishing to engage a court reporter at the hearing would be allowed to do so, (2) the Administrative Law Judge stated on the record that a court reporter was recording the proceedings, and (3) the court reporter did in fact take down the entire proceedings. Duarte-Vestar v. Goodwill Indus. (LIRC, 11/09/90).
A case was remanded for rehearing where a portion of the Complainant's testimony was not recorded. Krenz v. Lauer's Food Market (LIRC, 09/27/90).
Two court reporters ended up being present and reporting the hearing, and both filed transcripts with the Equal Rights Division. The Administrative Law Judge's decision was based on one of the transcripts, the other transcript not having been filed until after he issued his decision. Notwithstanding that there were some discrepancies in the two transcripts, they were not significant to the decision, and did not justify reversal. Campbell v. LIRC (Milwaukee Co. Cir. Ct., 02/19/88).
No due process rights of the Complainant were violated when the Hearing Examiner, who had initially failed to turn on the tape recorder, corrected the problem by having the testimony which had not been recorded repeated. Hill v. LIRC (Milwaukee Co. Cir. Ct., 09/21/85).
Rehearing was granted where the stenographic record of the hearing was lost. Hill v. Kitchen Reddy Foods (DILHR, 04/17/75).
772 Record of Hearing, Decisions and Orders; Findings of Fact
The fact that evidence material to issues which were not contained in the complaint became a part of the hearing record did not justify the Administrative Law Judge making findings in regard to these issues. The concept of conforming the pleadings to the proof is not applicable in administrative proceedings under the Wisconsin Fair Employment Act. Smith v. The Terrace at St. Francis (LIRC, 12/08/06).
Findings of fact need be only as to the ultimate facts where the evidence is sufficient to establish the ultimate facts found and such facts are inherent and necessary to the determination of the questions involved in arriving at the decision. Ultimate or general findings imply all facts necessary to support them, and a finding not explicitly made may be inferred from other properly made findings and from findings which, even though not made, would be supported by evidence in the record or inferences which can be drawn from the evidence. Polesky v. United Brake Parts (LIRC, 08/30/96).
The question of an employer's motivation presents a question of ultimate fact. Hoell v. LIRC, 186 Wis. 2d 608, 522 N.W.2d 234 (Ct. App. 1994).
There is no requirement that the Administrative Law Judge's decision provide a detailed account as to the resolution of all the evidence offered at the hearing. Sec. 227.47, Stats. requires only that "(t)he findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence." All that is required under this section is that the ALJ's decision adequately explains the basis for the decision. Patterson v. City of Milwaukee Dept. of Health (LIRC, 04/20/93).
When a witness offers testimony at hearing on a material issue, a finding of fact that "the witness testified . . ." is unsatisfactory, since it merely describes what happened at the hearing and does not resolve the question of whether what the witness testified to is considered by the tryer of fact to be true. Where a witness has testified as to a matter and the Administrative Law Judge accepts the testimony as true, it is preferable for the findings of fact to simply recite the substance of the witness' testimony as a fact found by the Administrative Law Judge. Green v. Woodman's Food Markets (LIRC, 01/30/91).
The case was remanded for further hearing where the Administrative Law Judge failed to make findings of fact and conclusions of law with respect to an issue raised in the amended complaint. Krenz v. Lauer's Food Market (LIRC, 09/27/90).
When an allegation of discrimination has not been made the subject of a properly filed complaint, it should not be made the subject of a decision. Additionally, there should be neither hearing nor a decision on the merits of an allegation of discrimination until the Equal Rights Division has conducted an investigation and issued an initial determination on the matter of probable cause. Finally, neither findings nor order should be made on allegations of discrimination not identified as issues for hearing in the notice of hearing. Yarie (Schroeder) v. The Pumphouse (LIRC, 9/14/90).
It was improper for the Administrative Law Judge to make a finding regarding the Complainant's difficulties in communicating when the Respondent had not raised those matters. Blohm v. Holiday Inn (LIRC, 01/31/90).
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).
The contents of an initial determination may not be considered by the examiner or the Commission in making factual determinations about a case when it has not been received as evidence or officially noticed. Schwantes v. Orbit Resort (LIRC, 05/22/86).
To the extent that the examiner's assessment of the demeanor of the witnesses is helpful in resolving the issue of whether a Respondent's articulated reasons for a challenged action are pretextual, the examiner's assessment of that demeanor is entitled to deference. Footit v. Oshkosh Door Corp. (LIRC, 02/03/86).
Where the complaint, initial determination, notice of hearing, and hearing dealt only with the question of whether the Complainant was constructively discharged by virtue of sexual harassment, it was not appropriate to make findings on a claim that the Complainant was discharged in retaliation for complaining of discrimination. Winter v. Madison Home Juice Co. (LIRC, 07/19/85).
A finding of fact may not be based on a record contained in the investigative file but not introduced at hearing. Injazoulian v. J. I. Case (LIRC, 07/16/82).
The court is bound by a joint stipulation of fact entered into by the parties and incorporated by the examiner into the decision. Milwaukee Area Technical College v. LIRC (Gilbert) (Milwaukee Co. Cir. Ct., 02/14/80).
While the hearing examiner's ruling that the discrimination did not fall within a statutory exception should have been labeled a finding of fact, the court may supply a missing finding where the evidence is clear and convincing. A mislabeled finding will be treated as what it is rather than what it is called. Dept. of Health & Social Services v. LIRC (Johns) (Dane Co. Cir. Ct., 11/28/79).
The hearing examiner may not reject testimony as to the existence of a fact without other evidence which renders that fact unlikely. The hearing examiner's skepticism did not justify rejecting the employer's testimony that the male applicant possessed superior job qualifications where there was no evidence to render that explanation unlikely. Waukesha Public Schools v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).
In concluding as a matter of law that there is no evidence to support probable cause, a hearing examiner must set forth the findings of fact upon which that conclusion is based. McMillan v. DILHR (Greyhound Lines) (Dane Co. Cir. Ct., 05/12/77).
The Equal Rights Division cannot base crucial or essential findings upon hearsay alone. Hunt v. City of Madison (DILHR, 02/11/75).
773 Record of Hearing, Decisions and Orders; Conclusions of Law; opinions and decisions in general
The concept of conforming the pleadings to the proof is not applicable in administrative proceedings under the Wisconsin Fair Employment Act. In this case, the Administrative Law Judge's decision exceeded the scope of the issues investigated by the Equal Rights Division, and noticed for hearing. Those issues were whether there was probable cause to believe that the Respondent had discharged the Complainant in retaliation for engaging in a protected activity, and whether there was probable cause to believe that the Respondent had discriminated against the Complainant in the terms or condition of her employment because of pregnancy. The Administrative Law Judge improperly made findings in regard to, and resolved, the issues of whether the Complainant was retaliated against in regard to terms and conditions of employment, and whether the Complainant was discharged because of pregnancy. No authority existed for making findings or rendering a decision in regard to these issues which had not been investigated by the Equal Rights Division, or noticed for hearing. Smith v. The Terrace at St. Francis (LIRC 12/08/06)
An administrative law judge may carry out a careful and thoughtful review of all of the evidence, find himself more persuaded by one side’s case than the other, and decide that the description of the facts and appropriate inferences which that side urged were substantially accurate. In such a case, adopting findings and conclusions urged in that party’s brief would be a reasonable approach. It is common in federal civil rights litigation for courts to call for the parties to submit proposed findings of fact and to then simply adopt the entire set of proposed findings submitted by the party whose case the court has found most persuasive. It is not argued in such cases that this evidence is a lack of critical thinking on the part of the court. Nor is such an argument warranted where the administrative law judge has, in his decision, adopted arguments made by one of the parties. Wells v. Roadway Express (LIRC, 05/13/02).
There is no rule that an Administrative Law Judge must specifically describe or comment on demeanor and credibility issues in a written decision. Campbell v. Barch Communications (LIRC, 01/17/97).
There is no requirement that an administrative decision be entered with exacting specificity. In particular, it is not necessary for administrative agencies to give reasons for the implied rejection of all alternatives in the evidence, as this would be too onerous a burden. This also applies to credibility issues. A specific finding that the testimony of a party was not believed is not required. Polesky v. United Brake Parts (LIRC, 08/30/96).
An Administrative Law Judge improperly found that a particular individual discriminated against the Complainant in conditions of employment, where the Complainant had not so alleged in her complaint. In the complaint, the only allegations of discrimination in conditions of employment were expressly related to alleged mistreatment by another individual. Crosby v. Intertractor America Corporation (LIRC, 05/21/93).
An Administrative Law Judge may not issue a decision on the merits after a hearing on the issue of probable cause, absent a stipulation to do so by the parties. Campbell v. A.J. Sweet of Madison, Inc. (LIRC, 08/29/92).
Chapter 227, Stats., does not require an Administrative Law Judge to announce the reasons for a bench ruling. Even in a written decision, an administrative agency need not set out what evidence it believed and what it rejected. It has been deemed unnecessary for administrative agencies to give reasons for the implied rejection of all alternatives, as this would be too onerous a burden. Vaisman v. Aldridge, Inc. (LIRC, 10/21/91).
The Administrative Law Judge erred in concluding that a discharge was in retaliation for opposition to a discriminatory practice where the complaint alleged only that the Complainant was discharged because of marital status and where that was the only issue investigated by the Department and the only issue set forth in the notice of hearing. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).
774 Record of Hearing, Decisions and Orders; Orders
Where a specific act of discrimination against a specific individual was alleged in the complaint and specified in the notice of hearing, the agency could not order the employer to cease from discriminating against other individuals. Haynes v. National School Bus Service (LIRC, 01/31/92).
Where the complaint and notice concerned alleged discrimination in compensation, the Department could not make findings or orders concerning discrimination in hiring. Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984).
The scope of DILHR findings, conclusions and orders is not limited by the initial determination, but by the notice of hearing. Where the notice of hearing pertained to issues affecting only a single employe and a single act of discrimination, DILHR's application of its order to "like situated employes or applicants for employment" and "ongoing acts of discrimination" was overly broad. Chicago, Milw., St. Paul & Pac. R.R. v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).
It would be a presumptive denial of due process to extend a DILHR order to a hearing witness not named as a party. Anfang v. Whitcomb (DILHR, 11/26/74).
A DILHR order was invalid because it was based on agency pregnancy guidelines which were not adopted in conformity with the procedural requirements of Chapter 227. Wisconsin Dept. of Employe Trust Funds v. DILHR (Riedel) (Dane Co. Cir. Ct., 08/30/74).
Where the complaint and notice concerned an allegedly unlawful discharge and transfers, the Department could not make findings or orders concerning independent compensa-tion issues. Wisconsin Telephone Co. v. ILHR Dept., 68 Wis. 2d 345, 228 N.W.2d 649 (1975); General Electric Co. v. Wis. Employment Relations Bd., 3 Wis. 2d 227, 88 N.W.2d 691 (1958).
775 Record of Hearing, Decisions and Orders; Delay in issuance of decision
The Wisconsin Fair Employment Act does not contain mandatory time limits within which decisions must be issued. Absent a mandatory requirement, administrative delay in issuing a decision is not reversible error. Zebrowski v. Woman’s Club of Wisconsin (LIRC, 11/28/07).
Administrative delay in issuing a decision is not reversible error. Although the Respondent had a continuing responsibility for back pay while awaiting the Administrative Law Judges decision, it could have terminated that loss and its continuing liability at any time by reinstating the Complainant. Crabtree v. Wilderness Home Supply (LIRC, 05/09/97).
A delay in the issuance of a decision under the Wisconsin Fair Employment Act does not constitute a deprivation of due process. Meier v. Whispering Oaks Care Center (LIRC, 06/04/97).
The Wisconsin Fair Employment Act contains no mandatory time limits for issuing decisions. LaCoy v. Wisconsin Farmers Union (LIRC, 02/28/96).
It is unfortunate when cases take a long time to be decided (over a year and a half in this case), but such a delay does not constitute a deprivation of due process. Jones v. Milwaukee County (LIRC, 04/6/95).
Administrative delay in the issuance of a decision under the Wisconsin Fair Employment Act does not constitute a denial of due process. Binder v. Nercon Eng. & Mfg. (LIRC, 12/18/90).
The Commission declined a Respondent's request that interest on the backpay award should not be imposed beyond 150 days after the date on which the Complainant's reply brief was filed with the hearing examiner, in a case in which it took the examiner more than two years from the hearing date to issue his decision, concluding that the Respondent had known since the initial determination of probable cause that the Complainant was likely to prevail and that the examiner's delay, while unfortunate, merely delayed payment of an award to the Complainant and his attorney and actually benefited the Respondent. Wetzel v. Clark County (LIRC, 06/05/87).
An Administrative Law Judge's delay of over a year in issuing an order of dismissal after orally dismissing a complaint at the hearing, while a regrettable circumstance, does not provide a basis for reversal or a new hearing. Neither do errors in the Administrative Law Judge's Summary of Proceedings 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).
The Complainant was not denied due process because of unreasonable administrative delay where DILHR's decision was issued almost two years after the complaint was filed. Sanchez v. LIRC (Dane County Community Action Comm.) (Dane Co. Cir. Ct., 11/20/80).
The Act contains no mandatory time limits for scheduling hearings or issuing decisions and therefore administrative delay is not a reversible error. There was no denial of due process because of unreasonable administrative delay where the complaint was filed in 1973, a hearing was held in 1975 and the examiner's proposed order was filed in 1977, and the employer will not be heard to complain that its liability to the employe accrues during litigation. Chicago & N.W. R.R. v. LIRC (Pritzl), 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).
779 Record of Hearing, Decisions and Orders; Miscellaneous
Sec. 227.48, Stats., provides that every decision shall include notice of any right of the parties to petition for administrative review of adverse decisions. Settlement agreements may be adverse decisions. Therefore, the Equal Rights Division should attach a notice of appeal rights to all orders in which a complaint is dismissed as a result of a settlement agreement. Fettig v. Co. of Fond du Lac (LIRC 07/14/06).
There is no requirement that an administrative decision be entered with exacting specificity. In particular, it is not necessary for administrative agencies to give reasons for the implied rejection of all alternatives in the evidence, as this would be too onerous a burden. This applies to credibility issues as well as other issues. A specific finding that the testimony of a party was not believed is not required. Polesky v. United Brake Parts (LIRC, 08/30/96).
It is not the Administrative Law Judge's duty to comment on all authorities cited in the arguments of the parties. The Administrative Law Judge need not provide an elaborate opinion, so long as the findings of fact and conclusions of law are specific enough to inform the parties and the courts on appeal of the basis of the decision. Bond v. Michael's Family Restaurant (LIRC, 03/30/94).
Where the Department's decision was made by an Administrative Law Judge other than the Administrative Law Judge who conducted the hearing, it was not necessary for the decision writer to consult with the presiding ALJ regarding his or her impressions of witness credibility because, in this case, the decision was based upon drawing inferences from the facts and not from making credibility determinations. Thwing v. Waukesha Engine Division, Dresser Industries (LIRC, 03/07/94).
An Administrative Law Judge has no authority to alter his decision once the period for filing a petition for review from that decision has expired. However, before the deadline for the filing of a petition for review has passed, and if no petition has yet been filed, an Administrative Law Judge does have the discretion to alter his or her decision. Thus, an Administrative Law Judge does have the discretionary authority to set aside a decision on the merits and issue a dismissal based on withdrawl within the 21-day period following the issuance of the original decision on the merits if no petition for review has been filed. However, it is not enough that the request for withdrawal of the complaint be filed within the 21-day period. The Administrative Law Judge must also issue the amended decision within that time. Wuest v. Motel 6 (LIRC, 11/05/91).
An Administrative Law Judge was authorized to amend her final decision before the Respondent filed its petition for review and before the time for petitioning expired. Wood v. Purolator Courier Corp. (LIRC, 06/11/91)
Notwithstanding sec. 227.48, Stats., the Wisconsin Fair Employment Act does not require that separate copies of decisions be sent to separate parties whose mailing addresses are identical. Mundy v. Iselin Catering (LIRC, 08/08/90).
It is not improper for an Administrative Law Judge to state in his memorandum opinion that he agrees with one party's position and has accepted that party's brief in support of his decision. Richland School District v. DILHR (Richland Co. Cir. Ct., 04/20/90).
It would be a denial of due process if a case were decided by an Administrative Law Judge who had not presided over the hearing and the deciding judge did not have the benefit of the impressions of the presiding Administrative Law Judge, who heard the testimony, as to the demeanor of witnesses. In this case, however, the Judge who presided over the hearing prepared a memorandum which summarized her impressions of the demeanor of witnesses, which was placed in the file, and which the deciding Judge had the benefit of. Thus, there was no denial of due process. Saler v. Spencer Gifts (LIRC, 09/30/88).
The decision of the Administrative Law Judge in one Complainant's case was inconsistent with her decision in another Complainant's case against the same Respondent, but this was because the same testimony was not elicited at both hearings, Rogers v. Milwaukee County (LIRC, 09/19/88).
Where the decision was not dependent upon and was not based on any resolution of credibility or demeanor questions, the decision was not defective because it was issued by an examiner other than the examiner who presided at the hearing. Wilson v. Vollrath Company (LIRC, 09/15/86).
An Administrative Law Judge is without authority to amend his or her decision after the time for appealing it has expired. Foster v. Crest Bldg. Maintenance (LIRC, 01/30/84).
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 impres-sions of the first examiner concerning witness demeanor. Muth v. LIRC (A.O. Smith) (Milwaukee Co. Cir. Ct., 07/22/83).
780 Procedure; Reconsideration, rehearing
An Administrative Law Judge has no authority to modify a decision once the 21-day period for petitioning for review by the Labor and Industry Review Commission has expired. However, an Administrative Law Judge may modify a decision if the period for petitioning for Commission review of that decision has not yet run and if no petition for Commission review has yet been filed. In this case, the Respondent submitted a ?motion to re-open proceedings? to the Equal Rights Division several months after the Administrative Law Judge?s decision had been issued. The Administrative Law Judge appropriately referred the matter to the Labor and Industry Review Commission so that it could determine if the motion should be considered as an attempt to petition for Commission review of the ALJ?s decision. Treige v. Servicemaster Clean (LIRC, 06/25/10).
Neither the Wisconsin Fair Employment Act nor the administrative rules of the Equal Rights Division allow an Administrative Law Judge to entertain requests for reconsideration. In this case, the Administrative Law Judge dismissed the complaint for the Complainant's failure to comply with discovery requests. When the Equal Rights Division received subsequent correspondence from the Complainant asking that consideration be given as to whether or not he had timely responded to the discovery requests, the Equal Rights Division should have treated the correspondence as a petition for review, rather than as a request for reconsideration. No statutory or administrative authority currently provides the Administrative Law Judges in the Equal Rights Division with the ability to reconsider or take further action on a decision they have issued (even within twenty-one days of the mailing of that decision when no petition for review has been filed). Nabors v. Kelly IT Resources (LIRC 10/06/06).
An administrative re-hearing will be granted only on the basis of material error of law or fact, or newly discovered evidence which is sufficiently strong to reverse or modify the order, and which could not have been previously discovered by due diligence. A re-hearing was not granted in this case, where the Complainant did not contend that the expert medical evidence she wished to present was "newly discovered," but rather that the evidence would have been presented at the hearing had her original attorney properly presented her case. Patek v. Waukesha Engine Division., Dresser Indus. (LIRC, 08/31/95).
The Respondent's request for further hearing based on its allegation that it did not receive the notice of hearing was denied where LIRC could infer that the Respondent received the notice of hearing. The file indicated that the notice was sent to the Respondent, and was not returned by the post office. In addition, the Respondent's counsel filed an answer to the complaint, which permitted the inference that the Respondent received the notice since the Respondent's counsel had not yet filed a notice of retainer and had not been mailed a notice of hearing. Rogers v. FASTOP I (LIRC, 10/21/92).
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).
A misunderstanding by a party as to the scope of the proceeding is not a sufficient basis upon which to grant a petition for rehearing. Beaverson v. DOT (Wis. Personnel Comm., 11/19/90).
The case was remanded for rehearing where a portion of the Complainant's testimony was not recorded. Krenz v. Lauer's Food Market (LIRC, 09/27/90).
The Personnel Commission lacks the authority to reopen a contested case which was resolved and dismissed with prejudice two years earlier based upon a claim by the Complainant that the Respondent has been unable or unwilling to fulfill the terms of the settlement agreement upon which the case was resolved. Krueger v. DHSS (Wis. Personnel Comm., 01/10/90).
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 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).
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 Complainant appeared at the hearing in person, without an attorney, and after hearing, the Administrative Law Judge dismissed the complaint. In his petition for review, the Complainant requested further hearing so that he might engage an attorney and witnesses to make a full presentation of the facts. Noting that the Complainant had a full and fair opportunity to present his case, and could have engaged the services of an attorney to prepare and present his case for hearing had he desired, and that the fact that he did not do so was his own decision, the Commission declined to order reopening of the hearing. Reykdal v. County of Bayfield (LIRC, 09/30/88).
The Commission will grant a "rehearing" on one of its decisions only on the basis of some material error of law, some material error of fact, or the discovery of new evidence sufficiently strong to reverse or modify the Commission's Order and which could not have been previously discovered by due diligence. An argument that a rehearing is necessary because of a party's attorney's failure to adduce all relevant evidence, and that such evidence not presented constitutes new evidence, fails to constitute a basis for granting a rehearing. Zurawski v. Dana Corporation (LIRC, 05/06/88).
In order to justify an order for further hearing based on newly discovered evidence, a Complainant must show that the request for such an order is based on new evidence sufficiently strong to reverse or modify the Administrative Law Judge's decision, which could not have been previously discovered by due diligence. Whipp v. DePaul Rehabilitation Hospital (LIRC, 02/24/88).
The Complainant filed a letter with the Commission which stated that he wished to withdraw his complaint, and the Commission dismissed the charge. Several months later, the Complainant requested that his original charge of discrimination be reinstated, on the ground that he had withdrawn his original charge as part of a settlement agreement but that the settlement agreement had been breached. The Commission only has jurisdiction to reopen the case on a petition for rehearing if the request is filed within 20 days of the date of the order. Therefore, the Commission lacked authority to reopen the matter. The Commission does not have express or implied authority to enforce settlement agreements. Haule v. UW-Milwaukee (Wis. Personnel Comm., 8/26/87).
It was error for an Administrative Law Judge to vacate and remand for reconsideration and reinvestigation a matter in which an initial determination of probable cause had already been issued. Binder v. Nercon Eng. & Mfg. Co. (LIRC, 07/23/87).
Treating the Complainant's petition for review, which argued that additional information was now available to support his case, as a request for further hearing to present additional evidence, the Commission denied the request. The evidence, which could potentially provide a basis for a finding that the Complainant was handicapped, could have been presented at the hearing already held. Additionally, it would not support an inference that the Respondent knew of the handicap at the time of the discharge or that the handicap played a part in the decision. Since this would not change the outcome of the Complainant's case, there was no reason to remand for further hearing. Braggs v. Pabst Brewing Co. (LIRC, 04/29/87).
A Complainant's claim of dissatisfaction with her attorney's handling of her case does not require that the dismissal of her complaint after hearing be reversed or that she be given a new hearing. If the Complainant's attorney did mishandle her case, her remedy would be against her attorney in the form of a malpractice suit. Feaster v. Paul A. Laurence Co. (LIRC, 04/22/87).
A trial court order remanding the matter to the hearing examiner for the presentation of additional evidence was properly vacated because the claimed newly discovered evidence was not such as to create a reasonable certainty that, if introduced and considered, the moving party would be successful in challenging the prior decision. Although the claimed new evidence here arguably impeached the credibility of several witnesses on minor points, it did not establish any basis for believing that the finding of no discrimina- tion would be altered. Welch v. LIRC (Ct. App., District III, unpublished decision, 06/24/86).
Where the employer agreed to holding the hearing one day early, and did not raise any objection to the change in hearing date until after an unfavorable decision was received from the examiner, the Commission did not err in refusing to grant a motion to remand the matter for further hearing. Consolidated Papers v. LIRC (Ct. App., Dist. IV, unpublished decision, 04/17/86).
Alleged improper ex parte communication between the examiner and a party does not justify rehearing where the other side failed to protest in a timely fashion and did not present supporting affidavits. Stewart v. St. Croix County Highway Dept. (LIRC, 02/27/85).
A party is not entitled to a rehearing without showing that it was not possible to present all the relevant evidence at the hearing, or that new evidence had become available which was not previously known or available. The fact that a party was unrepresented at the hearing is not sufficient grounds for granting a rehearing. Delaney v. Consolidated Communications (LIRC, 09/06/84).
An administrative rehearing will be granted only on the basis of material error of law or fact, or newly discovered evidence which is sufficiently strong to reverse or modify the order, and which could not have previously been discovered by due diligence. Bodensack v. Milwaukee Area Technical College (LIRC, 08/08/78).
Where a hearing examiner orally granted the employer's motion to dismiss a race complaint, but stated he might reopen the case later, he continued to have subject matter jurisdiction over the case until his recommended decision was issued and he could schedule another hearing. Further, even if the hearing was closed, the examiner was not precluded from granting a motion to reopen the hearing despite the provisions of Section Ind 88.09(3), Wis. Adm. Code, which states that motions not made at the hearing shall be decided by DILHR. State ex rel. A.O. Smith v. DILHR (Nickols) (Dane Co. Cir. Ct., 08/24/77).
Rehearing was granted where the stenographic record of the hearing was lost. Hill v. Kitchen Reddy Foods, Inc. (DILHR, 04/17/75).
790 Procedure; Appeal and review
791 Decisions not appealable to LIRC
LIRC's jurisdiction is restricted to the review of findings and orders by Administrative Law Judges. LIRC does not accept appeals from dismissals of complaints made by the Investigation Section of the Equal Rights Division. Burton v. United Govt. Services (LIRC, 11/21/11).
The Complainant refused to proceed at the hearing because he objected to the Administrative Law Judge’s decision not to postpone the hearing. The Administrative Law Judge dismissed the complaint based on the Complainant’s failure to present evidence to support his case. The Labor and Industry Review Commission rejected the Complainant’s appeal of the decision. The Complainant waived his objections to the Administrative Law Judge’s denial of his postponement request by his failure to proceed at the hearing. Jackson v. Transwood, Inc. (LIRC, 04/27/07).
The Administrative Law Judge issued a ruling concluding that the Complainant’s position as a first grade teacher was not a ministerial position as that term is used for purposes of considering whether a state adjudication interferes with the free exercise clause of religion under the First Amendment to the U.S. Constitution, and that the Equal Rights Division had subject matter jurisdiction over the complaint. The ALJ’s ruling was not a final decision and order; therefore, the Labor and Industry Review Commission was not authorized to review the Respondent’s petition for review. Ostlund v. Coulee Catholic Schools (LIRC, 03/03/05); reversed sub nom. Coulee Catholic Schools v. LIRC (La Crosse Co. Cir. Ct., 10/20/05) (see, 792, infra).
Interlocutory rulings are not appealable at the time they are made; a party must wait until a final decision is issued in the case and it becomes appealable to LIRC to raise any claim that the ALJ erred in such an interlocutory ruling. Thus, an ALJ's decision affirming a Preliminary Determination And Order which had dismissed some allegations of the complaint on the grounds that they were barred by the statute of limitations, was not a "final decision" because while it disposed of some issues, other issues still awaited resolution, and the complaint was thus still pending before the ERD, with further proceedings contemplated. A "Contingent Withdrawal" device was not sufficient to make the matter appealable to LIRC at this point. Woodford v. Norwood Health Center (LIRC, 05/11/01).
Under the applicable Equal Rights Division rule, 218.21, only final decisions and orders of the administrative law judge are appealable to LIRC. An ALJ's denial of a motion for a protective order was not appealable to LIRC, because the ALJ's ruling on the motion did not dispose of the entire complaint, and further proceedings on the complaint were still pending before the division. Rozas v. Kohler Company (LIRC, 09/13/96).
After a settlement conference between the parties and the ALJ, the parties entered into a settlement pursuant to which the ALJ dismissed the complaint. The complainant then filed a letter requesting LIRC review of certain conduct by the ALJ in the settlement conference. The complainant was not seeking modification or reversal of the ALJ's dismissal order, and the letter was not intended as a request for LIRC review of that order. The request for review is denied. LIRC's review authority under the WFEA extends solely and specifically to review of the "findings and order[s]" of ALJs. Because there was no request here to review the ALJ's order of dismissal, LIRC has no power to act. Nagy v. Fox Valley Tech. College and Baldi (LIRC, Nov. 22, 1995).
The Labor and Industry Review Commission will not exercise its appellate authority to entertain requests to review non-final decisions by Administrative Law Judges. Kielas v. Arcade Drivers School (LIRC, 06/17/94).
The Labor and Industry Review Commission has determined that it should not exercise its appellate authority to review non-final decisions and orders by an Administrative Law Judge. Erickson v. City of Menasha (LIRC, 01/27/94).
The Labor and Industry Review Commission will not exercise appellate authority to entertain requests to review non-final rulings by Administrative Law Judges. Callaway v. Madison Metro. School District (LIRC, 01/13/93). [Ed. note: This decision expressly reverses LIRC's decisions in Murphy v. Roundy's (LIRC, 05/11/92) and Bahr v. Levine & Epstein (LIRC, 06/05/92), found in Section 792 of this Digest.]
LIRC has generally not accepted appeals of interim or non-final orders. Its rationale for not accepting review in those cases is to avoid disruption of the orderly adjudication of cases before the Equal Rights Division. Mattson v. Green Bay Broadcasting Co. (LIRC, 08/28/90, amended 09/21/90).
LIRC will not accept petitions for review of non-final decisions, even if a party asserts that there are "compelling reasons" for doing so in a particular case. Here, LIRC declined to accept the Respondent's petition for review of an order by the Administrative Law Judge denying the Respondent's motion to dismiss the underlying complaint on the basis of res judicata. LIRC commented that it did so "notwithstanding the apparent meritoriousness of the Respondent's arguments" on the res judicata issue. Local 322, Allied Indus. Workers of Am. v. Johnson Controls (LIRC, 09/11/90).
LIRC will not grant a declaratory ruling which would functionally constitute an appeal from a decision by the administrator of the Equal Rights Division under sec. Ind 88.03(2), Wis. Adm. Code. Perrin v. Mequon Care Center (LIRC, 11/13/89).
There is no right to LIRC review of preliminary determinations reviewed by the administrator of the Equal Rights Division under sec. Ind 88.03(2), Wis. Adm. Code. Berntson v. Wisconsin Winnebago Business Committee (LIRC, 10/10/89).
The Commission declines review of nonfinal orders in order to avoid unnecessary delays and disruption of the orderly adjudication of cases. Giese & Field v. Wausau Insurance (LIRC, 10/25/88).
The Labor and Industry Review Commission is without authority to act on a petition for review of an Administrative Law Judge's decision finding that there is probable cause to believe allegations of a complaint and ordering the matter remanded to conciliation. Binder v. Nercon Eng. & Mfg. Co. (LIRC, 07/23/87).
A complaint was dismissed for the Complainant's failure to appear at the hearing. The Labor and Industry Review Commission remanded the matter and ordered that a hearing be held to determine whether the Complainant had good cause for his failure to appear at the hearing. A subsequent decision of the hearing examiner that the Complainant did have good cause for his failure to appear at the hearing was not appealable to the Labor and Industry Review Commission because it was an interim order in the case. The Commission has consistently declined to review interim, or non-final, orders issued by department examiners. Vega v. Larsen Company (LIRC, 07/03/85).
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).
LIRC will not accept an appeal from a dismissal of a complaint by the Equal Rights Division's Investigation Bureau. Its appellate jurisdiction is restricted to review of examiners' findings and orders. Matthews v. Marc Plaza Hotel (LIRC, 03/31/83).
A hearing examiner's conclusion that a complaint is timely filed is not subject to appeal until the case has been decided on the merits. Fox v. Massey Ferguson (LIRC, 02/28/83).
Where the Equal Rights Division dismissed a complaint as untimely prior to investigating the complaint, the proper appeal was by writ of mandamus to circuit court rather than to LIRC since LIRC's jurisdiction is limited by sec. 111.36(3m), Stats. [Note: Sec. 111.36(3m), Stats,has been replaced by sec. 111.39 (5)(a), Stats.] Chester v. Int'l. Harvester (LIRC, 06/05/80).
LIRC has no jurisdiction to review non-final findings and orders issued by the Equal Rights Division. Opolka v. Kolbe Millwork (LIRC, 12/20/79).
A probable cause finding made by a hearing examiner at a no probable cause hearing is not reviewable. Basile v. AMC (DILHR, 01/30/75).
792 Appeal and review; Decisions appealable to LIRC
The Labor and Industry Review Commission has the authority to review appeals from an Administrative Law Judge's order dismissing a complaint pursuant to a settlement agreement. Fettig v. Co. of Fond du Lac (LIRC 07/14/06).
The Labor and Industry Review Commission routinely reviews appeals in cases where an Administrative Law Judge has simply issued an order dismissing the complaint without the benefit of a hearing. Cases of this type include review of an ALJ's order of dismissal based upon a complainant's failure to appear for the hearing; a complainant's failure to file a complaint within 300 days of the alleged discrimination, and a complainant's failure to respond within twenty days to correspondence sent by certified mail. Fettig v. Co. of Fond du Lac (LIRC 07/14/06).
The Complainant was a first grade teacher at a Catholic school. She alleged that she had been discriminated against on the basis of age in violation of the Wisconsin Fair Employment Act. The Respondent filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the question of whether a position serves a ministerial or ecclesiastical function must be resolved because if the position involved is ministerial a discrimination complaint is blocked by constitutional concerns for separation of church and state under the Free Exercise Clause of the U.S. Constitution and the Freedom of Worship Clause of the Wisconsin Constitution. An Administrative Law Judge denied the motion to dismiss, ruling that the position was not ministerial, which allowed the discrimination claim to proceed. The Respondent petitioned the Labor and Industry Review Commission to review the ALJ’s decision. LIRC denied the petition for review because the ALJ’s decision was not a final decision and order. LIRC’s decision was overturned and remanded by the circuit court after the Respondent filed petitions for immediate review and a writ of prohibition to delay any further proceedings until the review was completed. While LIRC’s earlier refusal of review was understandable, constitutional concerns required LIRC to resolve the issue of whether the position involved was ministerial. Coulee Catholic Schools v. LIRC (La Crosse Co. Cir. Ct. 10/20/05). [But see, Kimberly Area SD v. LIRC & Betters, 2005 WI App 262, 288 Wis.2d 542, 707 N.W.2d 872]
LIRC has authority to review a decision by an Administrative Law Judge dismissing a case for lack of jurisdiction. There is no right to appeal the ALJ's decision directly to Circuit Court because the order of dismissal of the ALJ is not a decision on appeal to the administrator as contemplated by sec. Ind 88.03, Wis. Adm Code, for which direct appeal to Circuit Court is provided by rule. Heinritz v. Lawrence Univ. (LIRC, 09/30/93).
The Wisconsin Family and Medical Leave Act prohibits discharging or discriminating against an individual for opposing a practice prohibited under the Act. Other kinds of retaliation relating to the Family and Medical Act are now defined as discrimination under the omnibus anti-retaliation provision of the Wisconsin Fair Employment Act, sec. 111.322(2m), Stats. These cases are appealable to the Labor and Industry Review Commission, rather than to Circuit Court. Roncaglione v. Peterson Builders (LIRC, 08/11/93).
Sec. 808.03(2), Stats., governs permissive appeals to the Court of Appeals. Since Ind 88.14(2), Wis. Adm. Code, [Ed. note: sec. Ind. 88.14(2), Wis. Adm. Code, has been renumbered sec. ILHR 218.14(3), Wis. Adm. Code.] provides that discovery connected with hearings before the Equal Rights Division is to be the same as that set forth in Ch. 804, Wis. Stats., LIRC believes that by analogy it has the same authority to review an Administrative Law Judge's discovery order as the Court of Appeals has to review a discovery order of a circuit court. Bahr v. Levine and Epstein (LIRC, 06/05/92). [Ed. note: This decision was expressly overruled in LIRC's decision in Callaway v. Madison Metro. School District (LIRC, 01/13/93), found in Section 791 of this Digest.]
LIRC has discretionary authority under sec. 808.03(2), Wis. Stats., to review non-final discovery orders and sanctions. LIRC may exercise its discretionary authority to review those matters when it determines that an interlocutory review will materially advance termination of the litigation or clarify further proceedings in the litigation, protect the petitioner from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice. Grounds for discretionary review were not established by the Respondent's interlocutory appeal of an award of attorney fees as a discovery sanction. Murphy v. Roundy's (LIRC, 05/11/92). [Ed. note: This decision was expressly overruled in LIRC's decision in Callaway v. Madison Metro. School District (LIRC, 01/13/93), found in Section 791 of this Digest.]
An order by the Administrative Law Judge which remanded a case to investigation and which also denied the Complainant's motion for leave to amend his complaint because the proposed amended complaint was time-barred is a final order with respect to the denial of permission to amend the complaint. It does not matter that the Equal Rights Division treats the order as being interlocutory. LIRC has authority to act on the Complainant's petition for review. James v. Associated Schools, Inc. (decision on petition for rehearing) (LIRC, 03/24/89).
LIRC has the authority to review a nonfinal order of an Administrative Law Judge which remanded a case to investigation and which also denied the Complainant's motion for leave to amend his complaint because the proposed amended complaint was time- barred. James v. Associated Schools, Inc. (LIRC, 02/03/89).
Where dismissal of a portion of a complaint on statute of limitation grounds is first made by an Administrative Law Judge after a hearing, and no preliminary determination has been made under Section Ind 88.03, Wis. Adm. Code, the untimeliness ruling is properly appealed to the Labor and Industry Review Commission and not to Circuit Court. Couillard v. American Family Mutual Ins. Co. (LIRC, 04/14/88). [Ed. note: sec. Ind 88.03, Wis. Adm. Code, has been replaced by sec. DWD 218.05, Wis. Adm. Code].
Only final orders are appealable. A final order is one which disposes of the entire matter in litigation as to one or more of the parties. Therefore, the dismissal of certain of the Complainant's claims at hearing because of untimeliness was not an appealable final order. When an appeal of that dismissal was included with the appeal from the final decision on the merits of the remaining allegations of the complaint, it was timely. Couillard v. American Family Mutual Ins. Co. (LIRC, 04/14/88).
Where the Hearing Examiner bifurcated the hearing and issued a decision finding liability and ordering that a hearing be scheduled on the remaining issue of remedy, the Commission concluded that it had the authority to accept and address an appeal of the Respondent from the liability finding prior to the holding of a hearing on remedy. Davis v. City of Milwaukee (LIRC, 09/05/86).
An examiner's dismissal of a complaint at a no probable cause hearing for failure of a Complainant to appear is appealable to the Commission, and the Commission may order that testimony be taken before an examiner as to whether the Complainant had good cause not to appear at the hearing. Schneeberger v. A.M.C. (LIRC, 01/27/84), Moore v. Roundy's Industrial, Inc. (LIRC, 02/16/84).
There is no provision for judicial review of an examiner's findings of fact, conclusions of law and order issued after hearing. Such decisions must first be appealed to the DILHR Commission. Foster v. DILHR (Dane Co. Cir. Ct., 02/24/77).
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