ERD Case No. 8822318, EEOC Case No. 260871315

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on January 20, 1990. Complainant filed timely petition for review by the Commission and both parties submitted written arguments in support of their positions.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed February 15, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


Complainant argues that it was improper for the Administrative Law Judge to make her decision at the close of the Complainant's case in chief, without any period of deliberation, and without entertaining briefs and reviewing a transcript of the proceedings. However, the ALJ made certain that the Complainant had rested her case in chief, thus establishing that the Complainant had offered all evidence in her favor which she desired to offer. When Respondent then moved for dismissal, Complainant was given every opportunity to respond to its arguments. When the ALJ then issued her decision, she explained it at some length. Contrary to the contention of Complainant, it is not "highly unusual" for an Administrative Law Judge to make a decision on a case at the close of the complainant's case in chief on motion of a respondent. While it is true that before making such a decision an Administrative Law Judge must be fully knowledgeable of what facts a complainant needs to prove in order to prevail and of exactly what evidence has been presented at the hearing, Holcomb v. American Convenience Products (LIRC, March 25, 1988), these requirements can be fulfilled when an Administrative Law Judge properly understands the issues in the case and has carefully paid attention to and considered the evidence of the complainant as it comes in during the course of the complainant's case in chief. The ALJ's discussion of her reasons for granting the Respondent's motion satisfies the Commission that she had attentively evaluated the evidence as it came in and was prepared to rule. Contrary to the contention of Complainant, it is not accurate to state that it is "customary" that briefs are received in cases before the Equal Rights Division, and it is particularly inaccurate for Complainant to suggest that it is in any sense customary for an ALJ to have access to a written transcript of the hearing before issuing the decision. In many cases, decisions are rendered by ALJs with neither briefing nor a transcript.

Complainant objects that her ability to present her case was impaired by the Administrative Law Judge's ruling that a subpoena duces tecum served on Respondent shortly before the hearing and requesting significant volumes of documents from Respondent's personnel files, would be quashed. Complainant had sought, through very broad language, any and all documents possessed by Respondent relating to company expenditures for employe travel during two years, both by department and overall. As Respondent's attorney pointed out, this could potentially involve a large quantity of documents. Even assuming that some of them would have been relevant to Complainant's assertion that she was denied training opportunities because of her sex, it was clear that many, and perhaps most, would not. It is reasonable to assume that much of the documentation relating to travel expenditures would be unrelated to training. As the Administrative Law Judge notes, if these documents were produced at hearing and Complainant were given the opportunity to review them in order to determine which were relevant to her case and which were not, the review process would be extremely time-consuming and would inordinately delay the hearing. Complainant had the opportunity to conduct this kind of search for relevant evidence by way of pre-hearing discovery. Additionally, as Respondent argued, because none of the documents had been identified by Complainant prior to the hearing as potential exhibits, they would have been subject to exclusion in any event.

Complainant objects that her witnesses' testimony was "vastly curtailed by the continuous objections on technical, grounds" of Respondent's attorney, and she goes so far as to assert that "no substantive evidence of any kind was permitted from me or my four witnesses; the matter was decided entirely on legal technicalities." This is obviously not true, as the size of the transcript alone indicates. A great deal of factual matter came into the record, providing a good basis for all of the findings of fact made by the Administrative Law Judge. It was true that there was quite a bit of time spent at hearing dealing with procedural objections. The reason for this was the inability of Complainant, a lay person, to present her case in a fashion consistent with requirements that a foundation be laid for testimony, coupled with the appropriate reactions of counsel for the Respondent to attempts by Complainant to offer evidence and argument improperly.

The Complainant's criticisms of the ALJ for "lecturing her" about her failure to be represented by an attorney are unjustified. The Administrative Law Judge did, on a number of occasions, attempt to explain basic principles of law such as. relevancy, foundation, and hearsay, to Complainant in an effort to assist the Complainant in putting in her case without making the types of errors that invited meritorious objections from Respondent. The ALJ also reminded Complainant, on occasions on which Complainant in effect argued her unrepresented status as a reason for letting her engage in some of these improper questioning techniques, that the Complainant had had the opportunity to obtain counsel and, having made the choice to proceed without counsel, was unfortunately going to have to live with the consequences of her own lack of skill in making a record.

Complainant contrasts the ALJ's ruling "to bar many of my exhibits" -- apparently the reference is to the AIJ's refusal to accept documents from the investigator's file without a proper foundation being laid -- to the claim that the ALJ's decision "makes many references to previous documents in the case, especially the [Initial Determination]." The Commission could locate no such references, other than a reference to the Initial Determination in the recitation of the procedural history. The AT-J's findings are based on the evidence in the record, including the exhibits which were received.

The Commission has carefully considered the other arguments raised by Complainant, which are largely derivative of those discussed above or which consist of unsupported allegations of bias or lack of expertise on the part of the Administrative Law Judge, but has found them unpersuasive.



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