BENNY R NELMS, Complainant
DANA HOLDING CORPORATION, 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 conclusions in that decision as its own, except that it makes the following modifications:
1. Delete the sixth "FINDING OF PROBABLE FACT."
2. Replace the seventh "FINDING OF PROBABLE FACT" with the following:
One of the DHC production managers who supervised Mr. Nelms was not always courteous to him.
3. Replace the ninth "FINDING OF PROBABLE FACT" with the following:
After orientation, Mr. Nelms became part of a production team on third shift. He was trained on two different machines, and was assigned a clock number. For each package of assembled parts that he packed, he placed a "proudly packed" sticker on the box stating his clock number, date, and quantity of parts. This indicated that he had performed his tasks and had checked to make sure that the parts were in the condition required.
4. Change "On May 30, 2008," to "On or around May 30, 2008" in the tenth "FINDING OF PROBABLE FACT."
5. In the eleventh "FINDING OF PROBABLE FACT," change the number "17,000" in the third line, to "1,750."
6. In the second "CONCLUSION OF LAW," add the words "and/or age" after the word
"race" on the fourth line. (1)
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
January 4, 2012
nelmsbe : 120 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
Laurie R. McCallum, Commissioner
In his petition for commission review, Mr. Nelms expresses his dissatisfaction with the ALJ's decision, stating that everyone who came to the hearing did not tell the truth about events at his job. He repeats his allegations that he was harassed by his supervisor based on his race during the time that he worked for Dana Holding Corporation, the respondent, and that he was discharged due to discriminatory bias by the respondent based on his race and his age. He also complains that attorneys for the respondent harassed him prior to the hearing, calling him and threatening him in retaliation for his reporting of discrimination. He further asserts that the ALJ refused to call the witnesses that he needed for the hearing, sided with the respondent because the respondent had attorneys, and did not care about him because he is a black man.
As to Mr. Nelms' allegations about his witnesses, the record reveals that on January 15, 2010, five days (2) before the hearing, the ALJ received a list of seventeen witnesses who Mr. Nelms wanted for the hearing. Mr. Nelms requested that the ALJ issue subpoenae to all of them, even though Mr. Nelms did not know the last name of two witnesses and a number of the individuals on the list did not work for the respondent. The ALJ refused his request for seventeen subpoenae, but worked with Mr. Nelms at that time to determine which witnesses would provide relevant testimony. In so doing, he reasonably excluded those individuals who did not work at Dana Holding Corporation and who had no connection with the events at issue, and he identified several witnesses who would provide relevant testimony relating to Mr. Nelms' complaint. The respondent agreed to produce these witnesses at the hearing, if the ALJ deemed it appropriate.
The commission notes that the ALJ was not required to make the efforts that he made. The administrative rules of the Equal Rights Division require that the parties to a hearing, no later than ten days prior to the day of hearing, file with the division and serve on the other party a written list of the names of witnesses they intend to have testify at the hearing. See Wis. Admin. Code § DWD 218.17. The purpose of this rule is to protect parties from surprise and to protect the fairness and due process of the proceedings. Miller v. Old Dominion Freight Line, ERD Case No. CR200802203 (LIRC Jan. 27, 2011). Mr. Nelms' witness list was late, and the ALJ was under no obligation to attempt to secure Mr. Nelms' witnesses for him. Nevertheless, he did make that effort, and the respondent cooperated with him. The two individuals identified by Mr. Nelms as discriminating against him testified at the hearing, as well as two other witnesses who Mr. Nelms indicated were present to observe discriminatory conduct directed at him. That Mr. Nelms does not like the way his witnesses testified is understandable, given the nature of their testimony. However, the sworn testimony of the witnesses and the documents admitted into the record are what a decision-maker relies upon to make a decision, and the ALJ properly considered them in his decision.
In addition, after a review of the record, the commission finds that during the hearing, the ALJ repeatedly attempted to assist Mr. Nelms present his case, intervening on his behalf on multiple occasions to properly phrase questions to witnesses, to obtain Mr. Nelms' testimony on the matters relevant to his claims, and to explain to Mr. Nelms what was happening at each stage of the hearing. There was absolutely no evidence to support Mr. Nelms' allegation that the ALJ sided with the respondent, or that he was prejudiced against Mr. Nelms because he is a black man.
As to the allegations that the respondent's attorneys were harassing Mr. Nelms prior to the hearing, the commission notes that the contacts complained about related to Mr. Nelms' attendance at a deposition in early January 2010. It is not inappropriate to schedule a deposition prior to a hearing, and the commission is not persuaded that the respondent's attorneys' efforts in that regard were inappropriate or unreasonable. In addition, these events have nothing to do with the issue in this case, specifically Mr. Nelms' claims of discrimination by the respondent, Dana Holding Corporation.
Based upon its review of the record, the commission agrees with the factual findings made by the ALJ, with several modifications to more closely correspond with the record, as well as a modification to one conclusion of law for clarification purposes. There simply was no evidence presented that anyone involved in the allegedly discriminatory actions had any bias against Mr. Nelms due to his race and/or age. Mr. Nelms failed to demonstrate probable cause to believe that the respondent harassed him due to his race and/or age during his employment or discharged him due to his race and/or age.
cc:
Attorney Jill Pedigo Hall
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