GERALD MULLINS, Complainant
WAUWATOSA SCHOOL DISTRICT, 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 record which was before the ALJ. Based thereupon it makes the following findings and conclusions.
Complainant was a high school principal for the respondent. In March, 2007, the respondent notified him that he would be reassigned to a principal position at a different school, an assignment he felt was less desirable. On December 18, 2007, the complainant filed a complaint with the EEOC alleging:
1. I have been employed by the Respondent since 1989, and my current position is School Principal. In March, 2007, the Respondent involuntarily reassigned me to a less desirable school. I was replaced by a younger less experienced person.
2. I believe that I have been subjected to different terms and conditions of employment when I was involuntarily transferred to a less desirable school based on my age (DOB 11/06/1938) in violation of the Age Discrimination in Employment Act of 1967
The complainant was still working for the respondent, in the other principal assignment, at and after the filing of this complaint in December 2007. However, the complainant then resigned his position as of the end of the 2007-2008 academic year. The complainant did not file an amended complaint after he resigned his position.
The EEOC investigated the complaint first. It eventually issued a determination finding reasonable cause to believe age discrimination occurred. The determination included a finding that as a result of the forced transfer the complainant was forced to quit his job.
Subsequently, the ERD investigated the complaint and issue an Initial Determination. It found probable cause to believe that the reassignment of the complainant to a different principal position was discriminatory. However, it also stated:
While both parties discussed the Complainant's resignation/constructive discharge (which occurred in the Spring of 2008) and the EEOC investigated those issues, there was never a formal amendment to the Complainant's complaint to include his constructive discharge as an allegation of discrimination. Therefore, the Equal Rights Division cannot make a finding regarding the Complainant's resignation/constructive discharge.
The matter was then certified to hearing, and by a March 26, 2012, notice of hearing it was scheduled for a hearing on the merits to be held on June 26, 2012.
Then on March 28, the respondent filed a Motion in Limine which sought an order barring the complainant from presenting any evidence at the hearing concerning either a constructive discharge claim, or damages. After briefing on the issue, the ALJ issued a decision on May 31 which granted the motion to bar any claim of constructive discharge but which denied the motion as to evidence on damages.
Then on June 14, the complainant filed a Motion for Leave to Amend Complaint. It was accompanied by the amended complaint, which expressly raised a claim of constructive discharge. The motion argued that the complainant had good cause to amend because he had been acting pro se when he originally filed and the question of whether a claim of constructive discharge had to be specifically pled was not clear to him. He also asserted that the EEOC determination mentioning his having been forced to quit his job led him to believe the issue had been properly raised. After briefing on the issue, the ALJ issued a decision on June 19 which denied the motion for leave to amend.
On June 25, complainant's counsel filed and served a letter to the ALJ stating:
Claimant Gerald W. Mullins will not appear at the hearing on the merits of his age discrimination claim against the Wauwatosa School District on June 26, 2012. He asks the Court to issue a final decision disposing of his claims so that he may appeal the issues raised in the parties' pre-hearing motions.
The complainant did not appear at the hearing on June 26. The ALJ then issued a Dismissal Order on July 11, dismissing the complaint based on the complainant's failure to appear.
The complainant filed a timely petition for LIRC review. The petition focused entirely on the questions of whether the ALJ erred in granting the respondent's motion in limine barring complainant from presenting a constructive discharge claim and in denying the complainant's motion for leave to amend the complaint. The respondent submitted argument in response, arguing that the ERD's rules provide for dismissal of a complaint when a complainant fails to appear at a hearing and that LIRC has held that an intentional failure to appear at hearing because of disagreement with interlocutory orders of an ALJ waives the right to have review of those orders. The respondent also argued in the alternative that the ALJ's rulings were correct.
Discussion - The rules of the Equal Rights Division clearly provide that "if the complainant fails to appear at the hearing ... the administrative law judge shall dismiss the complaint." (emphasis added). Wis. Adm. Code § DWD 218.18(4). The only exception to the outcome of dismissal is if the complainant can demonstrate "good cause" for the failure to appear.
The complainant's petition does not even acknowledge this rule, much less assert that he had "good cause" for not appearing at the hearing. The complainant's sole argument is that the ALJ erred in ruling that he would be barred from presenting any evidence at hearing about a constructive discharge claim and would not be allowed to amend his complaint. The best construction which can be put on the complainant's position is that he believes he had good cause to skip the hearing because the ALJ had made these allegedly erroneous rulings.
However, LIRC has expressly held that dissatisfaction with an interlocutory ruling by an ALJ does not provide a justification for refusing to participate in 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 [ERD Case No. 9001485] (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.
Miller v. Old Dominion Freight Lines, ERD Case No. CR200802203 (LIRC, Jan. 27, 2011), set aside on other grounds, sub nom. Miller v. LIRC and Old Dominion Freight Line, No. 11-CV-334, Winnebago Co. Cir. Ct., Jan. 17, 2012. (1)
The commission continues to take this view, which it believes is important to the integrity of the system in place for litigation, appeal and review of ER cases. The reason it is important, is that it secures the non-appealability of interlocutory decisions of ALJs. Administrative rules, see, Wis. Adm. Code § DWD 218.21, and numerous LIRC decisions, see, e.g., Woodford v. Norwood Health Center, ERD Case No. 199704340 (LIRC, May 11, 2001), provide that only final decisions and orders of ALJs, which dispose of the entire complaint and leave no further proceedings pending before the division, may be appealed to LIRC. Yet if parties could simply bail out of hearings when they received rulings they disagreed with, appeal the resultant no-show dismissal, and get review of the underlying ruling and an order of remand for rehearing or further hearing if they prevailed, they would in effect be able to do exactly what the rules and decisions say they should not: appeal non-final, interlocutory decisions.
What the complainant could and should have done here, was to go to the hearing and present the best case he could given the limitations he was subject to. He would still have been able to introduce all the relevant evidence about the decision to reassign him to the different principal position and having to do with the nature of that position as compared to his previous position. He would eventually have received a final decision from the ALJ addressing his complaint, and he would been able to petition that decision to LIRC. In the course of that appeal he could have raised the argument that the ALJ erred in granting the motion in limine and/or in denying leave to amend. However, by intentionally foregoing his opportunity for hearing, he clearly brought himself within the waiver rule of the line of decisions discussed above.
For all of the reasons stated above, the commission finds and concludes that the complainant failed to appear at the hearing, without "good cause," within the meaning of Wis. Adm. Code § DWD 218.18(4), and on that basis it now issues the following:
The decision of the administrative law judge is affirmed. The complaint in this matter is dismissed with prejudice.
Dated and mailed
May 17, 2013
mullige_rrr : 110 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ Robert Glaser, Commissioner
/s/ C. William Jordahl, Commissioner
cc:
Attorney Brian Mullins, Counsel for Complainant
Attorney Ron Stadler, Counsel for Respondent
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