P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


JOHN SCHERER, Complainant


ERD Case No. 200102575, EEOC Case No. 26GA11599

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:


1. The respondent, Opportunities Industrialization Center of Greater Milwaukee, Inc. (hereinafter "OIC") is a business entity that contracts with the State of Wisconsin to administer the W-2 program.

2. The complainants, Tracey Clemons (hereinafter "Clemons"), and John Scherer (hereinafter "Scherer"), both worked for OIC, Scherer as the deputy director of operations and Clemons as a contract monitor.

3. During the relevant time period, Mona Garland (hereinafter "Garland") was the W-2 director for OIC. Garland supervised Scherer directly and Clemons indirectly.

4. Garland was generally dissatisfied with Scherer's work. She believed there was a lack of follow-through and initiative on Scherer's part and that he was responsible for missing deadlines. Scherer received a written warning in May of 2000 due to performance issues. Garland made a recommendation to move Scherer to the respondent's Teutonia Avenue office in June of 2000 due to complaints with his performance.

5. On August 14, 2000, Garland issued Scherer a one-day suspension for insubordination and lack of cooperation. Specifically, Garland contended that Scherer was unresponsive to questions and refused to provide information necessary to the operation of one of the respondent's contracts.

6. Clemons was moved to the Teutonia Avenue location in the fall of 2000. Although Garland had heard rumors that the complainants were engaged in an inappropriate workplace relationship, it was Garland who initially made the decision to put Clemons under Scherer's direction because she believed Clemons was the best qualified person for the position.

7. In April of 2001 Garland notified Scherer that Clemons would start reporting to Beverly Briggs-Evans, a work programs coordinator for OIC, effective May 1, 2001. Garland was not receiving reports that should have been generated by Scherer's department and believed that Ms. Briggs-Evans would be able to do a better job of ensuring that Clemons submitted the reports timely and in the format needed.

8. Ms. Briggs-Evans subsequently notified Garland that Clemons was not being responsive to her and that she was not getting cooperation from Scherer and Clemons.

9. Garland's unhappiness with Scherer's performance continued, and in April of 2001 Scherer was issued a 3-day suspension. If Garland had had the authority to discharge Scherer at this point, she would have done so.

10. Although Scherer's evaluations of Clemons indicated she was doing a good job, Garland did not receive the information she needed from Clemons and considered her ineffective in her role. Garland therefore decided to transfer Clemons to a different assignment.

11. Garland directed Clemons to report to Lyna Bliss at the Sullivan Center on August 13, 2001, in order to begin a new assignment as a customer relations specialist. Clemons failed to report to her new work site, and was discharged as a result.

12. In August of 2001 Garland wrote up a recommendation that Scherer be discharged for signing a fraudulent timecard for Clemons and for insubordination. However, Garland's superiors decided not to terminate him.

13. Garland believed that Scherer had excessive personal involvement with line staff, including Clemons, and that he spent an exorbitant amount of time socializing with staff at work and demonstrated a lack of professionalism in the workplace. Garland also believed that Scherer afforded Clemons preferential treatment and that there was a special relationship between them. However, no evidence was presented to suggest that Garland's impressions of the relationship between Scherer and Clemons related to their race, and it was not established that race played any role in the employment-related decisions at issue in this case.

Based on the FINDINGS OF FACT made above the commission makes the following:


1. The respondent did not discriminate against the complainants in violation of the Wisconsin Fair Employment Act.

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:


1. The complaints are hereby dismissed with prejudice.

Dated and mailed February 14, 2003
clemotr . rrr : 164 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



Failure to proceed issue

On the morning of the continued hearing in this matter the complainants' attorney submitted a document entitled "Complainants' Renewed Motions In Limine; For Adjournment And For Recusal Of The Presiding Administrative Law Judge." The administrative law judge began the continued hearing by asking the complainants' attorney whether she had anything to state on the record regarding her motions. She did not, and the administrative law judge ruled that the motions were denied. The complainants' attorney then stated that the complainants were not prepared to proceed and repeated her request for an adjournment. Upon being advised that the request was denied, the complainants' attorney reiterated that the complainants were not ready to proceed and stated that "the court may do what it chooses." At this point the respondent's attorney requested a dismissal on the ground that the complainants were not prosecuting their case, and the administrative law judge agreed that he would order a dismissal with prejudice on that basis. The administrative law judge subsequently issued a decision which was captioned "Order Of Dismissal Failure To Proceed."

The term "failure to proceed" tends to arise in circumstances where a party appears at the hearing, but does not present any evidence in support of its case. Lacking any evidence upon which to base a decision, the administrative law judge is unable to make any findings of fact, and has no alternative but to issue a dismissal. Some administrative law judges will characterize a dismissal under these circumstances as a dismissal for "failure to proceed." However, while the dismissal may be characterized as a "failure to proceed," it springs not from the procedural fact that the party has failed to go forward, but from the practical effect of this failure -- a dearth of any evidence in support of the complaint.

In the instant case, a dismissal for "failure to proceed" is inappropriate because the complainants did not fail to present any evidence, but put on two witnesses and submitted numerous documentary exhibits before announcing they were not prepared to go forward. Thus, the record does contain some evidence with regard to their claims from which the administrative law judge could have made findings of fact. The administrative law judge's dismissal of the case without considering the complainants' evidence essentially amounted to a sanction for the complainants' actions in abandoning the hearing.

The commission has held that an administrative law judge who dismisses an entire complaint as a sanction for the complainant's abandonment of a hearing, when the record does contain some evidence upon which factual findings could be made, has exceeded his authority. See, Jackson v. City of Milwaukee Public Library (LIRC, October 28, 1993). Rather than dismissing the complaint, the appropriate course under these circumstances would be to treat the complainant as having rested at the point at which he walks out or otherwise abandons the hearing, afford the respondent an opportunity to present its case if it chooses to do so, and issue a ruling on the adequacy of the evidence presented.

As a matter of administrative efficiency and to avoid further delay, the commission has opted not to send this matter back to the administrative law judge, but has issued its own findings of fact and conclusions of law based upon the evidence presented by the complainants prior to resting their case. Because that evidence is insufficient to raise even an inference of discrimination -- the complainants' failure to enter their races into the hearing record alone is sufficient to prevent a finding of discrimination -- the commission considers it unnecessary to afford the respondent any further opportunity to present its case.

Complainants' petition for review

In the petition for commission review the complainants ask for a new hearing before a different administrative law judge. The complainants contend that the proceedings were tainted by judicial partiality which resulted in a denial of their due process rights. Specifically, the complainants maintain that their motions in limine and their response to the respondent's motion to dismiss were summarily decided without regard to an evaluation of facts or law, and that the administrative law judge invited the respondent to offer its motion to dismiss as evidence in its case in chief while not admitting the complainants' responsive pleadings. The complainants maintain that the administrative law judge did not intend to provide them with a fair hearing and that they were playing against a stacked deck. For the reasons set forth below, the commission concludes that the complainants abandoned these arguments when they abandoned the hearing.

The administrative rules provide a mechanism for a party to raise issues of administrative law judge bias and to request a substitution of administrative law judges, which is set forth below:

DWD 218.16 Disqualification of the administrative law judge. Upon the administrative law judge's own motion, or upon a timely and sufficient affidavit filed by any party, the administrative law judge shall determine whether to disqualify himself or herself because of personal bias or other reason. The administrative law judge's determination shall be made a part of the record and decision in the case.

Although whether the complainants followed this procedure is arguable, given that their motion for recusal was not filed until the morning of the continued hearing and contained by way of argument only a conclusory statement, not in affidavit form, that the complainants did not believe they could get a fair hearing under the totality of the circumstances, it is clear from the record that they filed a motion asking the administrative law judge to recuse himself and that their motion was denied. However, denial of a motion for recusal does not give the complainants a right to walk out of the hearing. To the contrary, a party who fails to persuade an administrative law judge to remove himself must proceed to hearing with the administrative law judge, then raise the administrative law judge's failure to remove himself as grounds for appeal in the event of an unfavorable decision. Young v. Valley Packaging Industries (LIRC, April 27, 1992). If a party refuses to proceed with the hearing and the complaint is for that reason dismissed, the claim that the denial of the substitution request was error must be considered to have been abandoned. Id.

The commission applies the same reasoning to the other rulings in question--the denial of motions in limine, refusal to allow the complainants to submit documents, and failure to grant an adjournment. As a general rule, a party who believes it is not getting a fair hearing should nonetheless attempt to put in its best case, while preserving its objections on the record should it become necessary to file an appeal. 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.

Even if the commission were to review the complainants' objections, it would be unable to conclude that they were prejudiced by any evidentiary rulings made by the administrative law judge where they did not bother to put in the majority of their case. Although the witness list for Mr. Scherer contained ten names, including that of the respondent's attorney, Mr. Coe, only one of the remaining nine witnesses on the list was actually called upon to testify, and Mr. Scherer did not testify on his own behalf. The witness list for Ms. Clemons included five individuals, only one of whom testified at the hearing. Moreover, because Ms. Clemons herself chose not to attend either day of hearing, it appears that she was not planning on testifying on her own behalf regardless of the administrative law judge's rulings. Although the complainants are not required to testify on their own behalves, such testimony tends to be the strongest evidence in the case, and it is hard to imagine how the complainants hoped to prevail without it. In addition, the commission notes that at least one of the complainants' excluded exhibits, Ex. 1, would have been admissible if authenticated by the appropriate witness, an individual whose name appeared on Mr. Scherer's witness list, and the failure to call that individual was the complainants' own decision. Overall, it appears that the proximate cause of the complainants' failure to prevail was not the administrative law judge's allegedly narrow or prejudicial rulings, but the complainants' own decision to rest after putting in only a portion of their case.

As indicated in the body of the commission's decision, the evidence presented at the hearing demonstrated that the respondent was dissatisfied with the complainants' job performance, and undertook a variety of actions based upon that dissatisfaction. However, the evidence failed to establish that the complainants were discriminated against based upon race. Accordingly, the complaints in this matter are dismissed.

NOTE: The respondent has filed a motion to strike the complainants' petition for review and to impose sanctions on the complainants' attorney. This motion is denied.

Attorney Larraine McNamara-McGraw
Attorney Rocky L. Coe

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