RICKY G DAVIS, Complainant
OXBO INTERNATIONAL CORP, 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, except that it makes the following modifications:
7a. No one who participated in the Respondent's decision to terminate the Complainant's placement with the Respondent was aware that the Complainant's sex was transgender, or that his sexual orientation was bisexual.
7b. The complainant did not disclose his age to the Respondent during his placement with the Respondent.
7c. The complainant never expressed opposition to anyone in management for the Respondent concerning perceived discrimination on the basis of sex, sexual orientation or age.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed July 31, 2015
davisri_rmd . doc : 107 : 5 791 763 861 795
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The Wisconsin Fair Employment Act requires that testimony at an administrative hearing either be recorded or be taken down by an independent court reporter. Wis. Stat. § 111.39(4)(b). The Equal Rights Division (ERD) mails a notice to the parties in advance of hearing explaining that the normal practice is for hearings to be recorded by the ALJ. The notice also informs the parties that they could arrange to have a court reporter attend the hearing and produce a transcript at their own expense. Neither party arranged for a court reporter in this case, so the ALJ recorded the hearing on his digital recorder.
When hearing decisions are appealed to the commission, the commission normally uses a summary of proceedings prepared by an ERD legal assistant to aid in its review, but will use a transcript if either an independent court reporter attended the hearing and was appointed by the ALJ to produce a transcript, or if a party complies with certain procedures for having the ALJ's digital recording transcribed. In this case, the complainant sent the ERD a money order for $50 along with his petition for commission review. His intention was that the money be used to produce a transcript from the digital recording. The ERD returned the $50 to the complainant, and referred the complainant to the proper method for requesting the use of a transcript.(1) The complainant did not have a transcript produced.
Therefore, the ERD began to follow its usual practice of preparing a summary of the proceedings in this case. It was then discovered that much of the recording was inaudible. Only the ALJ's voice came through clearly. The ERD's legal assistant summarized the proceedings up to the point at which testimony was taken, and from that point on the summary consisted of the ALJ's notes of the witnesses' testimony.
The complainant objected to the summary of proceedings.
Discussion
The commission has at times remanded a case for a new hearing when the recording was of poor quality. See Krenz v. Lauer's Food Market, ERD Case No. 8802475 (LIRC Sep. 27, 1990); Saccomandi v. Pocus and Company, ERD Case No. 9051655 (LIRC Sept. 9, 1993). The rationale for doing so was that the missing or inaudible parts of the proceedings deprived the commission of its ability to conduct a full and fair review. Occasionally, however, the flaw in the recording is not grounds for a new hearing. In Popp v. Rhinelander Paper Company, ERD Case No. 9402056 (LIRC July 28, 1995), there was a failure to record approximately 30 minutes of the hearing, consisting of a portion of the complainant's adverse examination of the respondent's manager of labor relations. The commission did not remand for a new hearing:
However, [the gap in the recording] has not had any effect on the commission's ability to complete a full and fair review in this matter...In this case, the commission had available to it the Summary of Proceedings prepared by the Administrative Law Judge. The commission is satisfied that the Summary of Proceedings is an accurate record of the substance of the material testimony and that it served as a satisfactory basis for its review.
...In view of the availability of an adequate Summary of Proceedings as a basis for its review, and considering all of the other circumstances here, the commission sees no purpose to be served at this point by directing that the testimony in question be repeated in this case.
See also Schloemer v. Cupola House, ERD Case No. CR200802575 (LIRC June 14, 2013).
The guiding principle of the cases cited above is that if the record, while incomplete, is nevertheless sufficient to allow the commission to fully evaluate the findings and conclusions of the ALJ, and does not deprive the parties of their due process rights to a fair hearing, it is not required that a new hearing be held.
Here, the audible remarks of the ALJ, plus the ALJ's notes of the testimony, constituted a sufficient record for a full and fair consideration of the issues raised in the complainant's petition for review. This is because the issues the complainant raised in his petition have to do mainly with the alleged conduct of the ALJ and respondent's counsel, which can be dealt with without reference to the testimony of witnesses.
First, the complainant argued that it was "discrimination" to have a Polk County Deputy Sheriff sitting in at the hearing. He did not indicate, however, how the presence of the officer made any difference in the way the hearing proceeded, and he did not assert in briefing to the commission that he had objected to the officer's presence during the hearing, so that the ALJ could have addressed his concern in a timely fashion. The complainant asserted in his brief that the respondent's legal counsel and the ALJ held an ex parte conversation that led to the security arrangement, but, again, it seems that he made no such objection about an ex parte conversation at the time of the hearing so that the ALJ could have addressed it. An ex parte communication, under Wis. Stat. § 227.50, governing contested administrative hearings, is one that relates to the merits of the case, or to a threat or offer of reward. The complainant offered nothing more than wild speculation that such a communication occurred in this case. An unadorned request to an ALJ to have an officer sit in at a hearing would not be a communication relating to the merits of a case, or to a threat or offer of reward.
Second, the complainant reported in his petition that he saw two of the respondent's witnesses who were sequestered, Daniel Klitgard and John Gilbertson, talking to each other after Klitgard had testified and before Gilbertson had testified. He argued that their testimony should be stricken because they had violated the sequestration order by talking to each other. As with the alleged discrimination of having an officer observe the hearing, and the alleged ex parte conversation, the complainant failed to raise his concern about the two witnesses to the ALJ during the hearing so that he could have addressed it then. He raised it in a letter shortly after the hearing, and the ALJ indicated in his Decision that the complainant's failure to raise it at hearing amounted to a waiver of any objection he might have had. A failure of a party to assert a procedural objection to an event known to the party at time of the hearing, depriving the ALJ of the opportunity to exercise his discretion about the matter, has been deemed to be a waiver of the objection. Strong v. FRB Property Management, Inc., ERD Case No. CR200602358 (LIRC Dec. 2, 2009); James v. Dane County Parent Council, Inc., ERD Case No. CR200600735 (LIRC Feb. 20, 2009).
The complainant speculated that film from a surveillance camera would confirm that the witnesses were talking, and requested that the commission examine the supposed footage. The commission is a reviewing body; it does not gather evidence. The complainant's proposal, after hearing, to have such evidence considered could only be granted if, through due diligence, the evidence were discovered after the hearing, and the evidence might be significant enough to change the outcome of the hearing. Delgado v. St. Gobain Performance Plastics Corp., ERD Case No. CR200902721 (LIRC Nov. 29, 2013). The complainant's speculation about surveillance footage does not qualify-it was not a discovery the complainant made after the hearing, and it is not significant. The allegation that the two witnesses were talking in the hall was not sufficient to cause suspicion that they were in violation of the sequestration order, by which the witnesses were instructed, after testifying, not to discuss their testimony with any other potential witness. The complainant does not claim to know what the two witnesses said to each other, and there is no reason to believe that any supposed surveillance camera footage captured audio as well as video.
Third, the complainant says that he forgot to ask a question to witness Michael Tilton, who testified by telephone. As with his other arguments, he did not raise this issue prior to the close of the hearing. He raised it after the hearing in a letter, and the ALJ dealt with it in his Decision, stating that "while the Complainant may in hindsight wish he had asked Mr. Tilton some additional questions, that is not a basis to re-open the hearing or take any other action in relation to the hearing." The commission agrees.
As to the merits of the complaint, the complainant cited no specific inaccuracies in the ALJ's summary of the witnesses' testimony, including his own. According to the summary of his own testimony, the complainant never complained to anyone in management about sex, sexual orientation, or age discrimination; that alone destroys his claims of retaliation. If an employer does not know that an employee has made a complaint of discrimination it cannot be motivated by such knowledge in the conduct it undertakes. Crook v. County of Vernon, ERD Case No. CR200100052 (LIRC Feb. 23, 2004). According to the testimony of John Gilbertson, as summarized by the ALJ, Gilbertson was the person who found the complainant to be a no-call, no-show, which led to the termination of his assignment with the employer. Gilbertson testified that he was not informed, by the complainant or otherwise, about the complainant's age, sexual orientation, or the fact that he was transgender. The complainant did not argue that the ALJ's notes of Gilbertson's testimony were in error. If an employer is unaware of a complainant's protected status, it cannot be motivated by that status. Wucherpfennig v. Personal Development Center, ERD Case No. CR200201383 (LIRC June 29, 2006).
Motion for sanctions
Subsequent to the hearing, but before the ALJ issued his Decision, the respondent moved for sanctions against the complainant under Wis. Stat. § 227.483 for pursuing frivolous claims. In the memorandum portion of his Decision, the ALJ denied the motion. The respondent did not file a petition for review of the ALJ's denial of the motion, and instead resubmitted its motion to the commission with its reply brief. The commission's jurisdiction to entertain a request for sanctions under Wis. Stat. § 227.483 is confined to reviewing the ALJ's decision. It cannot act on requests for sanctions made to it for the first time (Drabek v. Major Industries, ERD Case No. CR200901993 (LIRC June 9, 2011)), and it generally does not review an issue in an ALJ decision unless it was raised by a timely petition for review. Dude v. Thompson, ERD Case No. 8951523 (LIRC Nov. 16, 1990); Brown, et al. v. Chippewa Valley Technical College, ERD Case Nos. CR20080334, CR20080333, CR20080332, CR20080466 (LIRC Nov. 28, 2014). Since the respondent did not raise the ALJ's denial of its motion for sanctions in a timely petition for review, the commission declines to review it.
NOTE: The ALJ sent a letter to the parties after issuing his decision, in which he corrected the sentence at the bottom of page 7, by inserting the words "does not", which he had accidentally omitted. Because the change significantly affected the meaning of the sentence, the better method of making it would have been by the issuance of an amended decision.
cc:
Attorney Farrah N. W. Rifelj
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(1)( Back ) According to the ERD's letter dated January 22, 2015 acknowledging receipt of the petition for review, the proper method is for the requesting party, at his or her own expense, to order a transcript by an independent court reporter or transcriptionist from the ERD's audio recording of the hearing.
uploaded 2015/08/19