ANTHONY F PERKINS, Complainant
MILWAUKEE BOARD OF
SCHOOL DIRECTORS, Respondent
d/b/a MILWAUKEE PUBLIC SCHOOLS
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, except that it makes the following modifications:
In the first sentence of the second paragraph of the Decision, change "March 17, 2013" to "March 17, 2014". In the fourth sentence of that paragraph, change "April 4, 2013" to "April 4, 2014".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed July 22, 2015
perkian_rmd . doc : 107 : 747
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
In his petition for commission review, the complainant writes:
I request an appeal in the above mentioned case on the grounds that my evidence was not allowed at the hearing. Two years of medical records were not allowed as evidence. They were part of the evidence with the initial complaint. The respondent's counsel stated that she never saw those records before and objected for them to be allowed as evidence. If she didn't see the records previously that means she never read the initial complaint. I was told at the hearing that I should have refiled the medical records so that they could be entered as evidence. I was unaware of this procedure.
The excluded documents consisted of a series of treatment notes for the complainant's anxiety and depression from August 22, 2011 to September 4, 2014, and two website documents with general information about depression and about the effect of cancer on one's emotional health.
If the complainant had attached his medical records to his initial complaint, as he stated in his petition, he would have had reason to believe that they were sent to the respondent, because the ERD is required to serve the respondent with a copy of the initial complaint. Wis. Admin. Code § DWD 218.04. But it is clear from reviewing the file that the complainant did not submit his medical records along with his complaint in July 2013; he sent them with a letter to the ERD investigator in October 2013. There is no record in the file indicating that the ERD mailed a set of the medical records to the respondent or its attorney after it received them in October 2013, but failure to do so was not an error-with the exception of serving a copy of the complaint on the respondent, the ERD investigative unit is not required to send copies of one party's filings to the opposing party.
At the time of the issuance of the no-probable-cause determination on March 17, 2014, it is apparent that the respondent did not have a copy of the treatment notes, and had received no indication that the notes were contained in the ERD investigative file.
The complainant made no assertion that he sent a copy of the treatment notes to the respondent between the time of his appeal of the Initial Determination and the date of hearing. He sent no disclosure of witnesses or copies of exhibits to the respondent in compliance with Wis. Admin. Code § DWD 218.17. It is apparent, then, that the complainant did not disclose the medical records to the respondent at any time prior to the hearing.
The ALJ excluded the medical records under Wis. Admin. Code § DWD 218.17:
DWD 218.17 Exchange of names of witnesses and copies of exhibits. By no later than the tenth day prior to the day of hearing, the parties shall file with the division and serve upon all other parties a written list of the names of witnesses and copies of the exhibits that the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using prior to the hearing.
The wording in this provision that the ALJ "may exclude" exhibits not identified in a timely fashion was intended to give the ALJ discretion to exclude exhibits not disclosed in compliance with the rule, but was not intended to allow the ALJ to exclude exhibits if admission would have caused no prejudice to the party opposing admission. Pohlen v. General Electric Company, ERD Case No. 8751496 (LIRC Apr. 18, 1991). The standard interpretation of the rule is set out in Berglund v. The Post Crescent Company, ERD Case No. 199900817 (LIRC Jan. 31, 2001):
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, so that in a case in which a party would not have been surprised or prejudiced by allowing testimony, it should be allowed.
See also Hansen v. Airborne Freight Corp., ERD Case No. 8400179 (LIRC May 21, 1987); Scott v. Sno Bird Trailer Company, ERD Case No. 8802744 (LIRC Dec. 19, 1990). The commission requires that the party requesting exclusion show how he or she was prejudiced by an untimely disclosure of an exhibit. Peace v. Milwaukee Plating Company, ERD Case No. 8951436 (LIRC Aug. 21, 1992).
In Rutherford v. LIRC, 2008 WI App 66, 29, 309 Wis. 2d 498, 514, 752 N.W.2d 897, the court of appeals framed the question of whether an ALJ properly excluded an exhibit under § DWD 218.17 as whether the ALJ "balance[d] the equities as between the parties before refusing to admit" a proposed exhibit.
The ALJ in this case appropriately asked the respondent's attorney for her position regarding prejudice before ruling on the respondent's objection. She stated:
Well, I've never seen these. My client has never seen these.
I would say that I've had no notice to look at these, and I'm prejudiced in that it's the day of hearing, and this lists symptoms and other things that we've not been privy to or have seen ever.
(Tr. of Hearing, p. 28).
The ALJ agreed that it would have been prejudicial to the respondent to admit medical records that the respondent had not seen until the day of the hearing:
Clearly dealing with medical records for the first time at the hearing, medical records are a complex thing which need notice for the other party to be able to process and deal with.
(Tr. of Hearing, p. 31).
The ALJ thus balanced the equities of the parties as contemplated by Rutherford. The respondent had not conceded that the complainant's condition qualified as a disability under the WFEA, so the respondent would have had reason to closely review any medical documentation offered by the complainant, and to develop its own questions to witnesses and its own evidence based on the documentation. Its opportunity to do so on the day of hearing was extremely limited. The ALJ's exclusion of the documents was not an abuse of discretion.
Later in the hearing, the ALJ also excluded the two website articles about depression. (Tr. of Hearing, pp. 129-131). As with the treatment records, they were never disclosed to the respondent prior to the hearing. The ALJ found them to be prejudicial, but also found them to be irrelevant, because they only addressed the general nature of depression and anxiety. The ALJ ascertained from the respondent that it did not contest the proposition that depression and anxiety, as described in the website articles, could constitute a disability under the WFEA; it contested the complainant's assertion that his specific set of symptoms constituted a disability. The website articles, then, did not go to the issue that was in dispute between the parties. Exclusion on this basis, and on failure of disclosure, was not an abuse of discretion.
Regarding the rest of the case, the ALJ's findings are supported by the evidence, except the issuance of the Initial Determination was on March 17, 2014, not March 17, 2013. The ALJ's conclusions of law are correct, except in conclusion no. 4 the respondent was mis-named. The commission affirms the decision with modifications.
cc:
Attorney Marynell Regan
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