DUANE L. MILLER, Complainant
OLD DOMINION FREIGHT LINE, 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 makes the following:
1. The respondent, Old Dominion Freight Line ("Old Dominion"), is a company that hauls freight.
2. Tim Behling was first employed with Old Dominion in December 2007. Behling manages supervisors who in turn manage operations at Old Dominion. In 2007 the supervisors working under Behling were Kenneth (Randy) Johnson and Duane Miller, the complainant herein.
3. When he started at Old Dominion, Behling had no awareness of any physical limitations which Miller may have had in doing his job at Old Dominion. Around 5 months after he began working with Miller, Behling acquired some understanding that Miller had had some medical procedures. Behling was never sure if Miller had any limitations.
4. Miller's employment with Old Dominion was terminated by Old Dominion in 2008.
5. Behling made the decision to terminate Miller, with the involvement and concurrence of Old Dominion's Central Region Vice President and Vice President of Human Resources.
6. One of the reasons that Behling gave for his decision to discharge Miller involved a situation occurring on March 13, 2008, in which a customer called for a pick-up, Old Dominion had already picked up at that customer's location on that day, and Miller made a decision that Old Dominion would not send someone to pick up from that customer again that day. Behling came and asked Miller if he didn't have any drivers in the Green Bay area, where the customer was located. Old Dominion would have had drivers in that area. Miller said something to the effect that they needed to teach the customer a lesson that they could not call in all day long. Behling then gave instructions for a driver to be sent to do the pickup.
7. Another one of the reasons that Behling gave for his decision to discharge Miller involved a situation occurring on March 17, 2008, in which four pickups, totaling over 30,000 pounds of freight, were missed because Miller did not want to send drivers back out.
8. There is no evidence in the record that Miller is an individual with a disability or that he was perceived as such by Old Dominion.
9. There is no evidence in the record as to what Miller's sexual orientation is.
10. There is no evidence in the record that any agent of Old Dominion refused to reasonably accommodate a disability of the complainant, or that any decision made by any agent of Old Dominion involving Miller, or any action taken by Old Dominion with regard to Miller, was made or taken because of any disability or perceived disability of Miller or because of Miller's sexual orientation.
Based on the Findings of Fact made above, the commission now makes the following:
1. The respondent, Old Dominion, is an "employer" within the meaning of the Wisconsin Fair Employment Act.
2. The complainant, Duane L. Miller, is an "employee" within the meaning of the Wisconsin Fair Employment Act.
3. The complainant has failed to prove by a preponderance of the evidence that the respondent violated the Wisconsin Fair Employment Law by refusing to reasonably accommodate a disability of the complainant, or by terminating the employment of the complainant because of a disability or discriminating against the complainant in terms and conditions of employment because of sexual orientation.
Based on the Findings of Fact and Conclusions of Law made above, the commission now makes the following:
The complaint in this matter is dismissed.
Dated and mailed January 27, 2011
milledu . rrr : 110 :
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
This case arises out of a complaint filed on July 9, 2008, alleging that the respondent, a trucking company, unlawfully discriminated against and discharged the complainant, who had worked for it as a supervisor. The complaint alleged discrimination on the basis of disability, age, gender, sexual orientation, and creed. An Initial Determination issued in November, 2008 found no probable cause as to allegations of discharge because of age or creed, probable cause as to allegations of discrimination in terms and conditions of employment because of gender and sexual orientation, and failure to accommodate disability and discharge because of disability. The no probable cause findings were not appealed. The matter came on for hearing on the issues as to which probable cause had been found, on May 14, 2009. At the commencement of the hearing the claim of discrimination on the basis of gender was withdrawn.
In the evidentiary portion of the hearing which followed, the complainant called and conducted examination of one witness, Tim Behling, a manager for the employer. He also had several documents marked for identification. The complainant was himself also sworn and provided some testimony. Then, in response to a ruling by the ALJ regarding the admissibility of certain documents, the complainant indicated that he would not proceed. The hearing then ended.
It is not disputed that the evidence which was put into the record at the hearing up to the point at which the complainant declined to proceed, was insufficient to carry the complainant's burden of proof to establish that he had been discriminated against as he alleged. Counsel for the complainant implicitly acknowledged this at hearing, and he has not argued the merits of the discrimination issues in his briefs to the commission. Complainant bases his appeal entirely on the argument that the ALJ committed errors regarding certain issues about exclusion of witnesses and exhibits. These issues had to do with (1) subpoenas which had been served on a number of individuals, (2) the untimeliness of the complainant's witness and exhibit disclosure list, and (3) the provenance of certain "computer printout" documents. It is the complainant's position that because of these alleged errors the ALJ's decision should be set aside and the matter remanded for a new hearing.
Waiver Issue - A threshold question presented by this case, is whether the complainant should be deemed to have waived his objections to the alleged errors of the ALJ on the subpoena and late witness and exhibit disclosure list issues, because of the complainant's refusal to proceed with the hearing.
The commission has repeatedly held that a complainant who disagrees with rulings rendered by an ALJ is required to proceed with the hearing in order to preserve his objections to such rulings on the record for review on appeal, and that if the complainant instead refuses to proceed with the hearing due to his objections to the rulings and his complaint is dismissed as a result, the complainant is deemed to have waived his objections to these rulings. Young v. Valley Packaging Industries (LIRC, 04/27/92); Clemons et al. v. Opportunities Industrialization Center of Greater Milwaukee, ERD Case No. 200102575 (LIRC 02/14/03); Casetta v. Zales Jewelers (LIRC, 06/14/05), Rick Jackson v. Transwood, Inc. (LIRC, 04/27/07). Thus in Casetta, the commission said:
As a general rule, a party who disagrees with rulings rendered by an ALJ is required to proceed to hearing, preserving her objections to such rulings on the record for review on appeal. See, Clemons et al. v. Opportunities Industrialization Center of Greater Milwaukee, ERD Case No. 200102575 (LIRC Feb. 14, 2003). If the complainant instead refuses, as here, to proceed with the hearing due to her objections to the ALJ's rulings, and her complaint is dismissed as a result, the complainant is deemed to have waived her objections to these rulings. Clemons, citing Baldwin v. LIRC, 228 Wis. 2d 601, 625, 599 N.W.2d 8 (Ct. App. 1999). The commission explained this approach in Clemons, supra, as follows:
As the Wisconsin Court of Appeals noted in a recent decision involving the worker's compensation statute, the commission is not limited to deciding whether an administrative law judge abused his discretion, but pursuant to Wis. Stat. § 102.18(3), conducts a de novo review, acting as an original fact finder and reviewer of the administrative law judge's decision. Baldwin v. LIRC, 228 Wis. 2d 601, 625, 599 N.W.2d 8 (Ct. App. 1999). The Fair Employment Act contains a similar provision, at Wis. Stat. § 111.39(5)(b). Thus, had the complainants presented their case before the administrative law judge and been displeased with the decision, they would have been entitled to a full and fair review of the entire proceeding by the commission, acting as an original and ultimate fact finder. As the court indicated in Baldwin, it is for the commission, not the complainants, to decide that it is futile to proceed. Where, as here, the complainants abandoned the hearing without putting in their entire case, the commission finds that their procedural objections were waived.
(emphasis added).
This case presents a situation which falls squarely within the general rule recognized in Casetta. After beginning the presentation of his case and eliciting some testimony from one witness, complainant's counsel made the conscious decision to not put in any more of his evidence because of his disagreement with rulings by the ALJ creating some limits on what evidence he would be allowed to put in. Counsel clearly made his decision to not put in any more of his evidence, knowing that this would leave an evidentiary record that was insufficient to meet his burden of proof, thus resulting in a decision against the complainant.
[Even apart from the fact that "it is for the commission, not the complainants, to decide that it is futile to proceed", see Clemons, supra, the commission expressly rejects any suggestion that the ALJ's rulings in this case had made it futile for the complainant to proceed. When he chose to not proceed with the hearing, there was clearly still a significant opportunity available to the complainant to put in additional evidence. The ALJ stated that notwithstanding complainant's failure to file a timely witness and exhibit disclosure, he would allow the complainant to testify (T. 40). The complainant could have testified about discussions he had with Behling (which his counsel questioned Behling about), about the events of March 13 and 17, 2008 which were part of Behling's reasons for discharging him, and about any other events occurring during his employment which led him to believe that he had been discriminated against. Complainant's counsel could also have continued his examination of Behling. There was also the possibility, which counsel effectively left unexplored, that he could have examined other witnesses. Even when a party has not timely filed a witness and exhibit list, they may still call individuals listed on the other party's list. See, e.g., Dominguez v. Sawdust Factory (LIRC, 04/16/87); it was presumably in keeping with this rule that the ALJ allowed the complainant to call Tim Behling adversely as a witness (see, T. 41). The ALJ had also indicated that he would allow the complainant to call both William Hammond and Butch Kalmus, who had been on the respondent's witness list (T. 27, 28)]
Given the general rule described in Casetta, the result here should be that the complainant would be treated as having waived his objections to the procedural rulings of the ALJ regarding exclusion of evidence.
Because of particular circumstances present here, however, the commission will not apply the Casetta rule in this case. These circumstances are, that it appears statements made by the ALJ during the hearing could have misled the complainant as to the effect of his decision not to proceed, thus calling into question whether the waiver of the objections could be considered to have been a knowing one.
When the ALJ made his ruling regarding the exclusion of the "computer printout" documents, complainant's counsel asked the ALJ to "close the record and give me the ability to bring an immediate appeal of that" (T. 83-84). In substance, complainant's counsel was asking for the hearing to be adjourned so that he could file an interlocutory appeal of procedural rulings by the ALJ. Initially, the ALJ indicated that this was an acceptable course (T. 84-86). Of course, it is well established, both as a matter of decades-long commission interpretation, (1) and by express provisions of the applicable administrative rules, (2) that such a course is not acceptable: the commission can not and does not entertain interlocutory appeals. It does not matter if the parties and the ALJ are agreeable to such a course; the commission's authority may not be expanded by stipulation of the parties, see, Welhouse v. Ind. Comm., 214 Wis. 163, 165, 252 N.W. 717 (1934) ("A party cannot confer jurisdiction by consent where the power to act is involved"), and it is not within the province of the ALJ to authorize interlocutory petitions to the commission, see, Local 322, Allied Indus. Workers of Am. v. Johnson Controls (LIRC, 09/11/90).
Fortunately, after discussions off the record, the ALJ realized that the situation could not be addressed by means of an adjournment and an interlocutory appeal, and he went back on the record and noted this. (T. 86). Unfortunately, the ALJ then added a statement which could have the potential to be misleading:
ALJ: Okay. We are back on the record. It occurred to me that just by ruling on these exhibits, it would not be a final order and therefore not appealable, and the whole purpose of us stopping now is so this question can be answered. Mr. Kuborn [Complainant's counsel], you had something to say?
MR. KUBORN: It would be my position, Your Honor, that based on your most recent ruling that I'm unable to proceed, and as a result of that ruling, the only further information that I could offer would be testimony on the part of the complainant, and without these documents, that would be severely limited. So if on this record, your final decision would be a dismissal, I believe that gives us a final order for review.
ALJ: Sure. And there is no question, if I dismiss the complaint, it's reviewable. Okay. Thank you.
MR. PAUTSCH [Respondent's counsel]: Thank you.
MS BAIOCCHI [Respondent's counsel]: Thank you.
ALJ: The record is closed, or the hearing is continued. I'm sorry. (Proceedings concluded.)
(T. 86-87) (emphasis added). (3)
The problem here is the ALJ's statement, "[a]nd there is no question, if I dismiss the complaint, it's reviewable." The commission believes that the intent of the ALJ was simply to observe that there was no question but that under Wis. Admin. Code § DWD 218.21(1), a "final decision...that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division", as opposed to an non-final or interlocutory decision, could be appealed to the commission. However, the fact that such a final decision may be appealed to the commission does not guarantee that every single issue a party may wish to raise in such an appeal will be considered by the commission. As noted above, it is a long- and well-established rule that a party who disagrees with rulings made at hearings by an ALJ must proceed with the hearing in order to preserve the objections to such rulings for review on appeal, and that where the complainant abandons the hearing without putting in their entire case, the commission will find that the procedural objections were waived and will not review them. The words used by the ALJ here created an ambiguity about application of this rule.
Counsel undertaking to represent a party in a proceeding under the Fair Employment Act, should be aware of the
Casetta rule. They should understand that an ambiguous comment such as that made by the ALJ in this case does not and can not contravene that rule. Indeed, even if an ALJ were to expressly state that a complainant could abandon the hearing and still obtain commission review of the issues that were motivating that decision to abandon the hearing (a statement the ALJ here did not make), counsel with awareness of the
Casetta rule should understand that any such statement reflected an erroneous understanding of the law on the ALJ's part. However, the commission feels that it cannot ignore the potential that, whatever should have happened, the ALJ's comment did in fact have an effect on the decision by the complainant's counsel to abandon the hearing. This undercuts the rationale of treating the complainant's abandonment of the hearing as a waiver of the right to review of the procedural rulings. Therefore, in these particular circumstances, it will not treat that as a waiver by complainant of the right to review of the ALJ's rulings, and it will proceed to review of those rulings by the ALJ.
Subpoena issues - Complainant had subpoenaed a number of individuals who were or had been employees of the respondent, to testify at the hearing in this matter. It appears that even before the hearing was formally opened the respondent raised an objection concerning these subpoenas and there was some off-the-record discussion about that (see, T. 6). (4)
After the ALJ opened the hearing, he turned to this issue. The respondent moved to quash the subpoenas on the grounds that they were served 24 to 48 hours before the hearing and that this was, in the respondent's view, burdensome and oppressive. (T. 7). The respondent also objected that as to two of the subpoenaed individuals (Tim Behling and Randy Johnson), there was an "ex parte communication" problem (T. 9). (5)
There followed a discussion involving the specific circumstances of many of the subpoenaed individuals. (T. 10-19). However, in this discussion the matter of the lateness of the complainant's witness and exhibit disclosure list under Wis. Admin. Code § DWD 218.17 was also frequently alluded to, with both the parties and the ALJ recognizing that the late witness and exhibit disclosure list issue could or would determine the question of whether certain individuals were allowed to testify, even apart from the subpoena issue. (T. 12, 13). Then, without having definitively resolved the subpoena issues, the ALJ turned to consideration of the late witness and exhibit disclosure list issue, and there then followed an extended discussion of that issue. (T. 19-40 ). Eventually, the ALJ ruled that he was "going to sustain the objection to the whole entire witness and exhibit list" (T. 40). He also stated that for that reason, there was no need for any subpoenaed witness to submit an affidavit regarding alleged hardship caused by the subpoena, and he stated that he would simply not address the respondents "ex parte communication" argument regarding some of the subpoenas (T. 41). There was no further discussion of subpoenas or affidavits during the hearing.
In his brief to the commission, the complainant argues the subpoena issues at some length, implicitly contending that the ALJ made erroneous rulings regarding those issues which adversely affected the complainant. However, the commission disagrees that this issue is meaningful in this case, given the ALJ's other rulings. The ALJ never made any definitive ruling arising from the subpoena issues which actually affected the course of the hearing. (6) The ALJ recognized that if he decided that he would not allow the complainant to call certain individuals because they had not been timely disclosed as potential witnesses, any questions about the validity of subpoenas on them would be moot (see, T. 37). This is what in fact occurred: the ALJ's eventual ruling "to sustain the objection to the whole entire witness and exhibit list" clearly arose from the issue about the (un)timeliness of that list, and did not have to do with the subpoena issues.
As is discussed below, the commission, like the ALJ, finds the lateness of the witness and exhibit list to be dispositive on the question of what witnesses the complainant was properly permitted to call. Because the subpoena issues are not determinative, the commission will not further discuss or decide those issues.
Dispute over "computer printout" documents - The commission believes that in order to understand the rationale of the ALJ in making his ruling that he would not receive the "computer printout" documents moved by the complainant into evidence, it is necessary to consider the arguments raised about those documents before the ALJ's ruling.
During the adverse examination of Behling by counsel for the complainant, a 15-page packet of documents was marked as Exhibit C-2. (T. 50). The ALJ noted that the question of whether the document would be admissible, was yet to be determined. Immediately, counsel for the respondent stated that he "enter[ed] an objection", without stating what he was objecting to.(T. 51) As noted, the ALJ had not at that time ruled that the exhibit would be received, and had in fact made it clear that whether it would be remained an open question, so the only thing the respondent's objection could have been to, was the ALJ's marking of the documents as an exhibit. This objection was meritless; marking a document for identification is a mere housekeeping matter intended to facilitate reference to the document on the record, and there can be nothing objectionable about an ALJ's marking of a document.
After counsel for the complainant asked the witness several questions about the documents which had been marked as Exhibit C-2, counsel for the respondent objected again. (T. 52). He was not objecting to a question (no question was pending) or to the witnesses' last answer; it is clear that his objection was again directed at the documents which had been marked as Exhibit C-2. This time counsel cited hearsay and lack of foundation, and he also referred to the fact that the witness had no notice of the documents until two days before the hearing. (T. 52-53). The exhibit had still not been moved into evidence at this point, and the ALJ noted this fact, stating that he would allow the questioning to continue and would "get to the rest of it later", a clear reference to the (still-open) question of whether the document would be received into evidence. This was appropriate. As noted, no objection had been interposed to any question put to the witness, and there was in any event nothing objectionable about any question which had been put to the witness. The documents marked as Exhibit C-2 had merely been marked at that point, not moved.
Further questioning of the witness by the complainant's counsel followed, and then complainant's counsel requested that another 7-page packet of documents be marked, and they were marked for identification as Exhibit C-3. (T. 59). Counsel for the respondent then again objected, again merely to the marking of the exhibits, in the absence of any motion for their receipt.
In arguing his objection, counsel for the respondent asserted that the documents were obtained from the respondent at a time when the complainant no longer worked there, from someone without authority to provide them, that they were "confidential" documents, that they named customers, that they were not sought in discovery, that they were produced to the respondent only a few days before on the exhibit list, that they were obtained by "theft" and that complainant's receipt of them constituted "receiving stolen property", that they were "corporate documents", and that the complainant had no right to "solicit" from the company (T. 60-61). Obviously, this presented the ALJ with a wide range of potential rationales for ruling on the admissibility of the documents.
Counsel for the respondent then requested and was granted the opportunity to voir dire the complainant regarding the documents (T. 62) and conducted an extensive examination of the complainant. (T. 62-75). The ALJ then sua sponte took over the questioning of the complainant about the documents, and examined him at some length. (T. 76-79).
The ALJ then asked counsel for the respondent when he first became aware that the documents were potential exhibits. (T. 79) This suggests that, at least at this point, the ALJ's focus was on the issue of whether the documents could be received as exhibits for the complainant notwithstanding that the complainant had not made a timely disclosure of potential exhibits before the hearing. After some argument between counsel on when the documents would or could have been seen, the ALJ gave counsel for the respondent the opportunity to explain the basis for his objection to the documents, and counsel began his reply by stating, "[o]ur objection to these beyond the exhibit list is that they were obtained through fraudulent means and through theft of documents..." (T. 80; emphasis added).
After a few further questions about the documents having been provided to the ERD investigator, the ALJ indicated that he would sustain the respondent's objection to the exhibits. (T. 82).
The ALJ did not expressly state, either in the hearing or in his subsequent written decision, his rationale for granting the respondent's objection to the documents. However, the commission concludes based on consideration of the discussions and arguments which took place at the hearing that the principal and determinative reason that the ALJ sustained the objection to the documents was that they had not timely disclosed to the respondent that the complainant intended to use the documents as exhibits.
There appears to have been a serious question as to whether a sufficient foundation could have been laid to authenticate the documents as actually being what the complainant was apparently going to represent them to be, i.e., documents printed out from and accurately reflecting data entered in the computer system of the respondent. The foundational issues presented with respect to computer-generated records are questions of "authentication" under Wis. Stat. section 909.01. Thinking Outside the "Business Records" Box: Evidentiary Foundations for Computer Records, O'Shea, Wis. Law. Feb. 2008.
Admissibility of evidence is always conditioned on a showing that the matter is what the proponent claims it to be. To demonstrate authenticity for process-generated records, the rule requires one to introduce "[e]vidence describing a process or a system used to produce a result and showing that the process or system produces an accurate result."
Id. The foundation required for the authentication of computer records such as this includes evidence as to the chain of custody for the evidence and how the records were produced. Id. The commission does not believe that the limited testimony elicited from Behling that the documents in Comp. Ex. 2 "came from" the respondent's computer system (T. 51) is sufficient as such evidence. The commission is also particularly disinclined to conclude that an adequate foundation was laid for these documents, given the wilful resistance of the complainant to testifying about where and how he got them.
In addition, the commission also finds the lateness of the witness and exhibit list to be dispositive on the question of the admissibility of the "computer printout" documents marked as Exhibits C-2 and C-3, for the reasons discussed below. Therefore, it will not further discuss or decide the issue of whether the manner in which the complainant obtained those documents would serve as an independent grounds to exclude them.
Late witness and exhibit list - The administrative rules of the Equal Rights Division require that by no later than the tenth day prior to the day of hearing the parties shall file and serve a list of names of witnesses and copies of the exhibits they intend to use at hearing, and that the ALJ may exclude witnesses and exhibits not identified in a timely fashion. Wis. Admin. Code § DWD 218.17.
The hearing in this case was scheduled for May 14, 2009; the tenth day prior to that date was May 4. It is undisputed that complainant's witness and exhibit list was not served until May 11, which was the third day prior to hearing. (7)
The paramount consideration in applying the rule must be its purpose to protect parties from surprise and to protect the fairness and the due process of the proceedings. Hansen v. Airborne Freight Corp. (LIRC, 05/21/87). Thus in Walker v. Masterson Co. (LIRC, 10/4/95), affirming an ALJ's exclusion of complainant's witnesses, the commission said:
[T]he purpose of the notice requirement for witnesses and exhibits is to give the opposing party proper opportunity to prepare its case against such witnesses and exhibits. A lack of notice prejudices the party that did not receive it, and the complainant offered no legitimate reason for his failure to have met the notice requirements.
In this case, the lateness of the complainant's witness and exhibit list was entirely a result of negligence, on at least two counts. First, counsel for the complainant acknowledged that the witness and exhibit list was not even ready to be mailed on May 4, the last date on which service would have been timely. His only explanation for that, was that he traveled to the offices of respondent's counsel in Milwaukee that day for a deposition. This is no explanation at all. Second, the witness and exhibit list, after finally being readied for mailing on May 5, was then not in fact mailed until May 11. Counsel's only explanation for that, was that the person who had responsibility for mailing it was "new" and that "it was certainly not given the priority in terms of getting it out the door that it should have" (T. 22-23). This too is no explanation at all. Thus, as in Walker, complainant effectively offers "no legitimate reason" for his failure to provide timely notice of what witnesses and exhibits he would offer.
The question of whether the other party would be surprised or prejudiced by allowing witnesses or exhibits not timely disclosed, is relevant to the question of whether evidence should be excluded. The presence of prejudice is not to be presumed, but surely, neither is its absence. All the facts and circumstances must be considered.
Part of the relevant facts and circumstances, is the extent by which a witness and exhibit disclosure is late -- that is, whether the disclosure is only a day or two late, or is delayed until shortly before the hearing begins, or is never made at all prior to hearing. It is reasonable to conclude that a greater delay in receipt of information about what evidence the other party plans to use, creates a greater potential for prejudice because it leaves relatively less time to prepare. For example, compare Peace v. Milwaukee Plating Co. (LIRC, Aug. 21, 1992), which concluded that it was not shown that receipt of the list on the 7th day prior to hearing prejudiced the other party, and Lloyd v. Gareth Stevens Inc (LIRC, 06/18/04), which found prejudice based on a lack of sufficient time to prepare to examine a witness where the complainant did not serve her witness and exhibit list until late afternoon on the Friday before a Monday morning hearing. The commission reasoned in Lloyd that even assuming that respondent's counsel had had some familiarity with certain disclosed documents by virtue of an earlier case, he was still entitled to an opportunity to prepare for the testimony of those individuals as it might relate to the case. In this case, the complainant's witness and exhibit list was not mailed to the respondent until a mere three days before the hearing.
In addition, the quantity of documentary material disclosed as potential exhibits, also affects the degree of the challenge posed to prepare to meet it, and has been considered relevant. See, e.g., Blunt v. Dept. of Corrections (LIRC, 02/04/05), in which the commission held that the ALJ properly excluded late documents where, even though they had been furnished to the other side in discovery, they had been effectively "hidden" by the volume of the documents thus produced. In this case, the complainant's witness and exhibit list identified 14 potential witnesses (including the complainant), and 200 pages of documents, of which 168 were pages of data apparently printed out from computer records. The volume of the documentation provided would have impacted the respondent's ability to anticipate what might actually be used at hearing and for what purpose.
Complainant asserted at hearing that the respondent should not have been surprised that he proposed to us the "computer printout" documents as exhibits, because he had provided those documents to the ERD's investigator during the investigation of the case. The fact that information is provided to the investigator does not necessarily mean that there cannot be prejudiced as a result of a party's later failure to specifically inform the other party of their intent to use that information as evidence at hearing. See, Osteen v. Aldridge, Inc. (LIRC, 11/21/89). Perhaps more important, in this case counsel for complainant did not assert that when he sent copies of the documents to the ERD investigator he also sent copies to the respondent, and documents in the ERD file in fact indicate that he did not do so. The cover letter from counsel for the complainant to the ERD investigator accompanying the "computer printout" documents contains no indication that the copies of the documents (or the cover letter) were also being sent to the respondent. Furthermore, the letter subsequently sent by the ERD investigator to the respondent to solicit its position on the complainant's contentions, contains no indication that copies of the "computer printout" documents were sent to the respondent with that letter, and the letter contains no mention of the documents. The subsequent Initial Determination issued by the ERD investigator also contains no mention of the "computer printout" documents. There thus appears to be no reason to believe that the respondent would have been aware at that time, that the complainant even had the documents, much less that the complainant believed they were relevant as evidence in his case.
The only other argument made by complainant as to why his proposed reliance on this large set of "computer printout" documents should not have come as a surprise to the respondent, was that the documents had been provided to the respondent by the complainant as part of "discovery responses" on April 13. Counsel for the respondent acknowledged that the documents were part of a discovery response the respondent received from the complainant. However, there is no basis for evaluating the significance of this because the context in which the documents were provided in that "discovery response" cannot be determined. The discovery papers are not on file, and no contentions were made about them at the hearing. It thus cannot be determined what kind of discovery request the "computer printout" documents were provided in response to, whether any representations were made in the response as to what relevance the complainant believed they had, and what context (i.e., other documents produced) they were provided in. The fact that certain documents may be included in a production of documents during discovery, does not require a conclusion that failing to specifically identify those documents as potential exhibits in a timely witness and exhibit disclosure, is harmless. See, Blunt v. Dept. of Corrections (LIRC, 02/04/05). A party cannot necessarily guess, from a quantity of documents produced in discovery, what information the producing party will sift and consider relevant and assemble to prepare his legal theories and plan his strategies at hearing. Id. Given the complete lack of information about the context in which the materials may have been provided in discovery, accepting the complainant's argument here would be tantamount to declaring that in any case in which documents were produced in pre-hearing discovery, a party could never claim prejudicial surprise at any produced document subsequently being offered as an exhibit at hearing. This would seriously undercut the purpose of the witness and exhibit disclosure rule, which is to give the opposing party proper opportunity to prepare its case against the witnesses and exhibits which the other party actually intends to use at hearing, see, Walker v. Masterson Co. (LIRC, 10/4/95).
In Rutherford v. LIRC & Wackenhut, 2008 WI App 66, �27, 309 Wis. 2d 498, 752 N.W.2d 897, the Court of Appeals suggested that in balancing the equities involved in decisions about whether to exclude evidence in an equal rights hearing because of failure to comply with DWD 218.17, pro se litigants should be provided a degree of leeway because of their unrepresented status. The complainant is not entitled to this kind of "leeway" here, as he was represented by counsel.
The fact that the witness and exhibit disclosure list for the complainant was filed very late in this case was a failure by Miller's counsel, not by Miller himself. In such situations it may be tempting to look for ways to excuse the client from suffering for the errors of their counsel. However, that is not a basis for setting aside the administrative law judge's decision. Squires v. Montex, Inc. (LIRC, 03/15/02).
[T]he commission has consistently held that the actions by the attorney do not provide a basis for setting aside an ALJ's decision and granting a further hearing ... The commission believes, as stated by the court in Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284, 470 N.W.2d 859 (1991), that it is more equitable to allow the adverse consequences of an attorney's actions to fall upon the shoulders of the party who has chosen the attorney, rather than on the adversary and other litigants who await their day in court.
Hamilton v. Northwestern Elevator Co. (LIRC, 12/10/02).
Accord, Cleary v. Federal Express (LIRC, 07/30/03),
Nickell v. County of Washburn (LIRC, 07/29/05),
Crawford v. Wiza Inds. LLC (LIRC, 10/20/06),
Amos v. McDonald's (LIRC, 05/25/07). The commission has expressly applied this rule in cases in which a complainant's attorney has failed to timely serve a witness and exhibit disclosure list,
see, Blunt v. Dept. of Corrections, supra.
Conclusion - The evidence in the record in this case is insufficient to establish that the respondent discriminated against the complainant as alleged. Complainant relies entirely on the argument that the ALJ erred in excluding certain evidence. Because complainant refused to proceed with the hearing due to his objections to the ALJ's rulings, the commission would normally treat his objections to those rulings as having been waived. It does not apply that waiver rule in this case, solely because a statement made by the ALJ could have misled the complainant into believing that he could still obtain review of the ALJ's evidentiary rulings even if he abandoned the hearing. Reviewing the ALJ's rulings, the commission concludes that the determinative and dispositive ruling of the ALJ, relating to both witnesses and exhibits, was that the exclusion allowed under DWD § 218.17 would be applied because the complainant's witness and exhibit disclosure was untimely and the respondent was prejudiced thereby. The commission agrees with that ruling. It also notes that the "computer printout" records sought to be used by the complainant were subject to exclusion on the grounds that there was not an adequate foundation laid for their receipt, particularly in light of the complainant's wilful refusal to testify about how he got them. For those reasons, the commission affirms the decision of the ALJ.
NOTE: The respondent objected to the commission's use of a transcript, rather than a synopsis of the testimony, to review this matter
The commission's rules provide, in Wis. Admin. Code § LIRC 1.04(1), that "except as provided in subs. 2 through 5 of this section, the commission shall base its review on a written synopsis of the testimony taken at the hearing." The referenced subsections cover situations where: a transcript was prepared and used by the ALJ (subs. 2); a party follows the procedures for requesting use of a transcript (subs. 3); a party shows that a synopsis which has been prepared is inadequate (subs. 4); and the commission decides on its own motion to use a transcript (subs. 5).
In this case, no transcript had been prepared when the ALJ decided the case, so subs. 2 is inapplicable. No synopsis was ever prepared, so there is no issue about the adequacy of a synopsis, and thus subs. 4 is not applicable.
Subsection 3 of LIRC 1.04 provides:
(3) Except in unemployment insurance cases, the commission shall base its review on a transcript of the hearing rather than a synopsis if a party timely requests the commission in writing to conduct its review on the basis of a transcript, the party certifies in such request that it has ordered preparation of a transcript at the party's own expense, and the party thereafter files a copy of the transcript with the commission and serves a copy of the transcript on all other parties. To be timely under this subsection, a request must be made no later than 14 days after the requesting party's receipt from the commission of written confirmation that a petition for commission review has been filed.
In this case, complainant's counsel attempted to invoke this procedure. However, his request for the use of a transcript was filed 29 days after the Equal Rights Division issued its written confirmation that a petition for commission review has been filed, and it was thus untimely. Therefore, subs. 3 is inapplicable.
The commission concludes that its use of a transcript to review this matter was appropriate pursuant to LIRC § 1.04(5), which states:
(5) On its own motion, the commission may base its review on a transcript of the hearing in addition to a synopsis. In those cases the commission shall direct the preparation of a transcript at its own expense and provide a copy of the transcript to each party without charge.
This provision gives the commission a broad "own motion" authority to decide to use a transcript. The commission believes that this authority exists where a transcript has already been prepared and filed with the commission, and that in such cases it allows the commission to decide, in its discretion, to use such a transcript either in addition to a synopsis, or in lieu of synopsis.
The commission would also note that the respondent has not contended that it is prejudiced in any respect by the commission's use of a verbatim transcript of the proceedings as opposed to a summarization of them, and that it is difficult to conceive of how there could be any such prejudice.
cc:
Attorney Michael J. Kuborn
Attorney Lisa A. Baiocchi
Appealed to Circuit Court. Remanded to ALJ for hearing, January 16, 2012.
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