CAROLYN M KNIGHT, Complainant

FORTRANS INC, 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.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 30, 2001
knighca . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In the brief in support of her petition for commission review the complainant argues that she has been declared incompetent by the State of Wisconsin and, therefore, is incapable of representing herself. The complainant argues that under the terms of her protective placement order she did not retain the right to enter into contracts and, therefore, is unable to retain an attorney to represent her. She contends, however, that her incompetence is not expected to be permanent and states that she wishes to reserve the right to file an amended brief after she is found competent and has retained an attorney. The complainant's request to file an amended brief at an unspecified future date is hereby denied. The commission has already held this matter open for four years at the complainant's request. During this time the complainant has offered a variety of excuses for her inability to file a brief on her behalf, including problems with obtaining a transcript and problems with her health. Prior to filing her brief, however, the complainant never expressed a desire to retain an attorney, nor suggested that to do so was beyond her capabilities. Moreover, while parties prosecuting complaints under the Wisconsin Fair Employment Act may retain legal representation if they choose to do so, there is no entitlement to such representation, and the complainant's failure to secure legal counsel is not a circumstance that would justify holding this matter in abeyance. Finally, the commission notes that the complainant has managed to submit two coherent and comprehensive briefs on her own behalf, which strongly suggests that she does not have any difficulty representing herself. The commission will now address the substantive arguments raised in those briefs.

The complainant argues that the administrative law judge exceeded his authority, abused his discretion, and generally failed to conduct a fair hearing. The complainant maintains that it is obvious the administrative law judge favored the respondent even before the hearing. She requests a new hearing in order to correct "all of the errors, problems, mistakes, and abuses of discretion" made by the administrative law judge "due to his autocratic attitude, demeanor and air of superiority." The commission has considered each of the complainant's enumerated arguments, but finds them unpersuasive and denies her request for a rehearing.

First, the complainant argues that she became tired during the hearing, and that the administrative law judge abused his discretion by denying her request for a break. However, the record does not indicate that the administrative law judge refused to allow a reasonable number of breaks during the hearing, nor did the complainant demonstrate that she required more frequent breaks than are usually accorded at one of the Division's hearings.

Next, the complainant contends that the administrative law judge abused his discretion by failing to honor her attorney's request for a postponement. This, too, lacks merit. The complainant went through three attorneys prior to the hearing and, while her second attorney filed a motion for a postponement, nothing in the file indicates that Mr. Olaiya, who represented the complainant at the hearing, desired that the matter be postponed. In addition, the commission notes that the administrative law judge did not categorically deny the complainant's request for a postponement, but directed her to submit additional information in support of her request. The complainant did not do so and her new attorney, Mr. Olaiya, did not continue to seek a postponement, but appeared at the scheduled hearing date ready to proceed.

The complainant also contends that the administrative law judge abused his discretion when he erroneously declared that Mr. Hartel was served with a subpoena and failed to show up when they were ready for him, despite Mr. Hartel's message of his estimated time of arrival. Again, this argument fails. The synopsis indicates that the administrative law judge specifically noted that Mr. Hartel was not served with a subpoena and decided that, if he did not appear in a timely manner, the hearing would be adjourned without his testimony. The record does not indicate that the complainant's attorney had any quarrel with this ruling, and the commission sees no reason to conclude that the administrative law judge acted unreasonably.

The complainant's next contention is that the respondent's witness, Mr. Hebbe, lied when he stated that all trucks carried the same modifications as hers. The complainant states that the administrative law judge abused his discretion in crediting this testimony. Once again, the complainant's argument has no merit. Mr. Hebbe did not testify that all trucks carried the same modifications as the complainant's. Rather, Mr. Hebbe stated that he believed all of the trucks had bus mirrors installed in them, but could not be certain. He further indicated that the extra grab handle requested by the complainant was not installed in the other trucks. The administrative law judge's finding that the complainant requested an extra mirror and grab rail and that the respondent installed those items for her was consistent with both Mr. Hebbe's testimony and with the complainant's own testimony on the subject.

The complainant further argues that she had a rebuttal witness who could have discredited Mr. McCann's testimony, but that the administrative law judge abused his discretion by deciding the hearing was over rather than asking if there were other rebuttal witnesses to be heard. The complainant does not contend that this rebuttal witness was present at the hearing, but seems to suggest that, if the administrative law judge had inquired as to whether she wanted to present more evidence, she would have brought him to a continued hearing. The commission is unpersuaded by this argument. The complainant was represented by an attorney at the hearing, and it was her obligation to inform the administrative law judge that she wished to submit further testimony on her behalf, if that was her desire. Where the synopsis indicates that the complainant rested her case without doing so, it cannot be said that the administrative law judge deprived her of her right to present evidence in support of her case.

Next, the complainant argues that Mr. Leslie was identified as a representative, not as a witness, and that since he testified at the hearing he should have been sequestered. However, Mr. Leslie was specifically identified as a witness on the respondent's witness list prior to the hearing. Further, nothing in the record indicates that the complainant requested he be sequestered.

Try as she might, the complainant has provided no compelling argument to support her assertions that the administrative law judge abused his discretion or accorded her something less than a full and fair hearing on the merits and a decision untinged by bias. The commission's review of the record reveals no reason to doubt the administrative law judge's objectivity or his commitment to holding a fair hearing. Interestingly, the complainant's post-hearing brief, which was prepared by her attorney, contains absolutely no allegation of unfairness or a lack of due process. The fact that the complainant's own attorney did not take issue with the manner in which the hearing was conducted further suggests that the complainant's arguments of unfairness, raised only after the administrative law judge issued a decision adverse to her, lack credence.

Finally, in the last paragraph of her brief, the complainant makes an argument which addresses the merits of the case. The complainant contends that the administrative law judge is not a doctor and does not know what he is talking about when he says she failed to prove by a fair preponderance of the evidence that she had a handicap. The complainant points out that Dr. Luzzio stated in a letter to the commission dated February 22, 1999, that she had become very disabled and, further, that the Equal Rights investigator found probable cause. Again, this argument lacks merit. The letter from Dr. Luzzio was prepared several years after the hearing and has absolutely no bearing on this case. Similarly, the opinion of the Division's investigator is not a factor in the administrative law judge's decision. The administrative law judge is not expected to be a doctor, but is required to make a legal conclusion based upon the evidence in the record as to whether or not the complainant met her burden of establishing that she has a disability, within the meaning of the Fair Employment Act. Because the evidence adduced at the hearing fails to demonstrate that, as of the relevant time period, the complainant was a person with a disability, the commission agrees with the legal conclusion made by the administrative law judge. The dismissal of the complaint is affirmed.

cc: Thomas J. Duffey, Jr.

Appealed to Circuit Court.  Affirmed May 15, 2003.

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uploaded 2001/09/04