KATHRYN LENZ, Complainant
HUMANA INSURANCE COMPANY, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed April 28, 2005
lenzka . rsd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The administrative law judge dismissed Kathryn Lenz' complaint based on her failure to appear and proceed at the hearing on February 3, 2005. Lenz contends the ALJ erred.
Included among the assertions made by Lenz on appeal is that:
The commission is not persuaded by the complainant's assertions. The commission is persuaded that the ALJ did advise the parties during the January 7, 2005 telephone conference that the hearing would go forward unless he received a signed settlement agreement prior to that time. For example, as noted by the respondent's counsel, after learning from the complainant's counsel on January 31 that the complainant would accept the revised settlement agreement, he (respondent's counsel) spoke to the ALJ "who unwaveringly took the position that the hearing would take place unless the settlement was signed and in his possession before Thursday, February 3, 2005", and that he "relayed that information immediately to the Complainant's attorney."
The respondent's attorney's statement that the ALJ "unwaveringly" took the position that the hearing would take place unless the settlement was signed and in his possession, strongly suggests that the ALJ was holding steady to an earlier position.
Moreover, the commission is particularly influenced by the fact that there has been no submission by the complainant's counsel asserting that at no time on January 7 did the ALJ state that the hearing would go forward unless he received a signed settlement agreement prior to the time of the hearing. This fact lends convincing credence to the ALJ's decision statement that the parties were advised on January 7 that the hearing would go forward on February 3 unless he received a signed settlement agreement prior to the hearing.
Furthermore, the complainant's assertion that at no time during the January 7 conference did the ALJ state that a signed settlement agreement was needed prior to February 3 fails because she admits that she could not hear parts of the January 7 conference. And while the complainant complains about not being able to hear parts of the conference, and that she could not hear what her attorney was stating, assuming this to be true, the ALJ should have ensured that everyone was properly connected before continuing to proceed with the conference call. Nevertheless, the complainant was represented by counsel and she could have contacted her attorney after the conference call to learn of any information she may have missed.
In view of the fact that the commission is persuaded the ALJ did advise the parties during the January 7 conference call that the hearing would go forward on February 3 unless he received a signed settlement agreement prior to that time, whether or not the ALJ was able to leave a message for Lenz' attorney on January 31 is not of any particular importance. In any event, the respondent's counsel asserts that on January 31, after the complainant's counsel called to state he believed the complainant would accept the terms spelled out in the respondent's revised settlement agreement, that he (respondent's counsel) contacted the ALJ who unwaveringly took the position that the hearing would take place unless the Settlement Agreement was signed and in his possession before Thursday, February 3, and that he relayed that information immediately to the complainant's attorney. Furthermore, the comments contained in the cover letter of the January 31 Settlement Agreement the complainant's counsel faxed to the respondent strongly suggests that this Settlement Agreement was a response to the information relayed by the respondent's counsel that the hearing would take place unless the Settlement Agreement was signed and in the ALJ's possession before Thursday, February 3. For example, first of all, this is indicated by complainant's counsel's offering of explanations for the delay in movement on the settlement agreement (he was unaware another attorney was to review the document prior to execution; he has been too sick to be at the office; his personal assistant left for personal reasons on the 14th). Second, and even more telling, is counsel's comment, "I have not been through the mail, so your message is the only notice received to date." (Emphasis added.) Finally, there is complainant's counsel's comments that "I know that you will expedite approval in your usual professional manner. I am in the office for the balance of the day (I hope). My apologies to you and the judge."
With respect to the complainant's assertion that during a call she made to the ALJ on January 7, 2005, the ALJ told her that if she did not settle with the respondent he would find against her, the commission agrees with the respondent that this assertion strains the complainant's credibility because no written record of her unhappiness with such a statement by the ALJ exists anywhere to this day.
As for the complainant's assertion that during her January 7 call to the ALJ she indicated she wanted to receive a copy of all information forwarded to her attorney or the respondent's attorney, other than the ALJ's January 26 letter confirming the hearing dates of February 3 and 4, 2005, there is no indication that the ALJ had sent any information to counsel. The complainant already had this information because she admits that the ALJ indicated they would have a hearing date of February 3rd and 4th unless the parties agreed to a settlement.
With respect to the complainant's assertion that her attorney did not receive the Settlement Agreement until January 31 and that the respondent did nothing to speed up the process, such as signing the Agreement prior to sending it to us for signature, the complainant ignores the fact that the respondent could not have done this because her counsel had tendered a Settlement Agreement on January 31 containing language that differed from what existed in the respondent's January 7 revised Settlement Agreement.
Finally, the complainant's assertions that she had requested that a new administrative law judge be assigned to her case as soon as she received notice that Olstad was assigned as the judge, and that her request was denied by Olstad without reason, also fail. Wisconsin Administrative Code § DWD 218.16 provides as follows:
"Disqualification of the administrative law judge. Upon the administrative law judge's own motion, or upon a timely and sufficient affidavit filed by any party, the administrative law judge shall determine whether to disqualify himself or herself because of personal bias or other reason. The administrative law judge's determination shall be made a part of the record and decision in the case." (Emphasis added.)
Similarly, Wis. Stat. § 227.46(6), provides as follows:
"The functions of persons presiding at a hearing or participating in proposed or final decisions shall be performed in an impartial manner. A hearing examiner or agency official may at any time disqualify himself or herself. In class 2 and 3 proceedings [ERD hearings are class 3 proceedings], on the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a hearing examiner or official, the agency or hearing examiner shall determine the matter as part of the record and decision in the case." (Emphasis added.)
In order to disqualify an administrative law judge in an ERD proceeding, a party must provide and establish an actual reason-documented in a supporting affidavit-for the judge's disqualification. See Odya v. Captain Install, Inc. (LIRC, 05/19/00). See also, Vaisman v. Aldridge, Inc. (LIRC, 10/21/91) (Decision makers in state administrative proceedings enjoy a high presumption of honesty and integrity and a party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption, citing State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 242 N.W.2d 689 (1976)). The complainant never filed a timely and sufficient affidavit asserting personal bias or other reason for disqualification of Olstad. She simply made a written request for the substitution of the administrative law judge without stating any reason for such request.
The commission also notes that the complainant had argued to the ALJ that Wis. Stat. § 801.58, which allows a party a one-time ability to substitute the presiding judge without demonstrating a reason for such request, was applicable to the ERD hearing process. However, Wis. Stat. § 801.58 cannot be applicable because that procedure is in direct conflict with the division's administrative rules and ch. 227, which govern hearing procedures before the division.
For all of the above-stated reasons, the commission has affirmed the administrative law judge's dismissal of the complainant's complaint.
Attorney Thomas A. Fadner II
Attorney Ronald T. Pfeifer
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