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



ERD Case No. CR200303360, EEOC Case No. 26HA10061

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on September 2, 2004. A timely petition for review was filed. For the reasons set forth in the memorandum opinion, the commission issues the following:


The administrative law judge's decision of September 2, 2004, is set aside, and the matter remanded to the Division for a new hearing and decision on the issue of probable cause or, if so stipulated by the parties, on the merits of the case. (1)

Dated and mailed May 31, 2005
robergs . rpr : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


In her petition for commission review the complainant argues that the hearing was unfair. The complainant contends that the administrative law judge did not give her an opportunity to be her own witness and tell her side of the story, that he only permitted her to discuss evidence from the exhibits he allowed, and that he dismissed the complaint before she had rested her case. The complainant states that she felt she was being bullied into giving up. Based upon its review of the record, the commission agrees that the complainant was denied procedural due process and concludes that a new hearing is warranted.

The hearing in this matter lasted approximately four and a half hours. However, the complainant, who appeared pro se, was not sworn in until approximately an hour and a half into the hearing. Prior to that point, the administrative law judge explained his view of the law and attempted to narrow the scope of the evidence that would be presented. This can be seen in the following colloquy:

Judge: Ok. I'm just getting and dealing with it there is some part at this point I'm not accepting in dealing with this part that these are. . . the problem with these cases in my view and it effects how I conduct hearings, is that the parties come from very two different perspectives and want to talk about often slightly different things and I'm trying to talk about something that's probably different from what you really want to talk about what you really want to talk about so then I'm trying to figure out how to make a decision when we really haven't addressed. . . there's a tendency not to address what I want to talk because the parties are talking about what they want to talk about. So I'm going a say let's try and identify exactly what we are dealing with here so I can get the information that I need and not spend time dealing with the stuff which what's important to one of the parties is not important to me. (TR at 7). (2)

The administrative law judge has the authority to regulate the course of the hearing. Wis. Stat. § 227.46(1)(e). However, there can be such a thing as overregulation. In this case, as illustrated above, the administrative law judge applied a heavy hand in controlling and limiting the evidence that would be presented. In addition, before the complainant began to present her case, the administrative law judge had interjected many of his own legal theories and opinions into the record, further shaping the type of evidence the complainant was permitted to present, and creating confusion as to what the complainant would need to show in order to satisfy her initial burden of proof. The commission notes, for example, the following, in which the administrative law judge attempted to explain his view that the complainant would need to present comparative evidence:

Judge: The more you can find the more of a pattern you can create, the more you can . . . it's like a this job is, some ways is, like a chemistry experiment. If the respondents say that if you put these three ingredients together and it blows up then I can try with the three ingredients, does it blow up when I put the three in or not if it doesn't blow up and then I add a fourth and that your claiming and consider and it goes then I say Ah this needs to be put together when you explain this matter. . . (TR at 11.)

Such musings and explanations permeate the record in this case. However, the commission does not believe they added clarity to the proceedings or otherwise assisted the complainant in presenting her case. While it might be appropriate for an administrative law judge to assist a party, particularly one who is appearing pro se, to gain a sufficient understanding of the law in order to facilitate the presentation of material evidence, the administrative law judge's role does not extend to presenting lengthy exposition as to the administrative law judge's personal interpretation of the law.

When the complainant was finally sworn in and permitted to testify, she was subjected to close questioning on the part of the administrative law judge, during which she was not permitted to expand her responses beyond the scope of the narrow questions posed. The administrative law judge frequently interrupted the complainant's testimony, admonished her that her responses were not useful, and imposed limits on the evidence she could present. (3)  The complainant should be given an opportunity to tell her story and to explain why she believes she was discriminated against in violation of the law. Although an administrative law judge may reasonably act to rein in a witness who has strayed too far off topic, the administrative law judge should avoid controlling the hearing with such a heavy hand that the complainant leaves the hearing room feeling, as the complainant did in this case, that she was not afforded her day in court.

In addition to the problems identified above, the commission is also troubled by other procedural aspects of this hearing, including the manner in which exhibits were handled. Rather than waiting for the complainant to introduce her exhibits during the presentation of her testimony, the administrative law judge chose to mark the complainant's documents as exhibits and to receive some of them into evidence on his own motion and before the complainant was sworn in. The administrative law judge then apparently relied upon the contents of those exhibits, including Exhibit 15, the respondent's answer to the complaint, as a basis to dismiss the complaint. Not only was Exhibit 15 marked by the administrative law judge on his own motion, but the record reflects that the complainant was not asked whether she wished to submit the document in question, and only the respondent was given a specific opportunity to object to it. (TR at 21, 38.) Moreover, no foundation was laid for the introduction of this and other documents, many of which were not prepared by the complainant, nor was the complainant afforded an opportunity to cross-examine the respondent about their contents.

Another substantial defect in these proceedings, to which the complainant has made reference in her petition, is the fact that the decision to grant the motion to dismiss was issued before the complainant had rested her case. The record indicates that at the end of the May 28 hearing the administrative law judge informed the parties the hearing would be continued, and advised the respondent's attorney that he had the choice of cross-examining the complainant before she rested her case, or could reserve the opportunity to call her as a witness as part of the respondent's case. After some further discussion of procedural matters, the respondent's attorney clarified his understanding that he would have thirty days to make any motions, assuming the complainant had closed her case. The administrative law judge agreed, and indicated that the hearing was set to continue. At no time was the complainant asked whether she had additional evidence to present, nor did she affirmatively indicate that she was ready to rest her case. Notwithstanding this, the administrative law judge granted the respondent's post-hearing motion to dismiss, noting in a July 15, 2004 letter to the parties:

"I have concluded that Ms. Roberge has rested her case and that she has failed to provide the necessary evidence of age discrimination to warrant continuing the hearing to allow DATCP to present their case in a probable cause hearing."

That a party has rested its case and has no further evidence to present is not a matter that should be left to inference, but should be clearly and affirmatively established on the record. Here, not only did the complainant not indicate an intent to rest her case prior to the closing of the hearing, but in a written objection to the motion to dismiss, the complainant specifically notified the administrative law judge that she never rested her case and did not feel she had a chance to present a case. Granting the respondent's motion to dismiss under these circumstances was clearly inappropriate.

Finally, even assuming that the complainant had rested her case, the commission would be of the opinion that the administrative law judge's decision to dismiss this matter on the respondent's motion without the respondent having put in its rebuttal was ill-advised. Caution must be exercised in granting a request to dismiss at the close of a complainant's case and, before granting such a request, the administrative law judge must be fully knowledgeable of what facts a complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing. Holcomb v. American Convenience Products Division of Scott Hoffmaster, Inc. (LIRC, March 25, 1988). A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail. The commission is of the view that, in all but the clearest and most unambiguous of circumstances, the best practice is to require the respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. Such a practice benefits both parties since, where a motion to dismiss has been granted improperly, the respondent takes the chance that a reversal may result in a finding for the complainant without the respondent's having put in any evidence on its own behalf. Indeed, were the record in this matter clearer and the proceedings less marred by error, the commission might have been inclined to reverse and issue a finding of probable cause in this case. However, because the commission believes that the hearing did not result in a record sufficient to permit such findings, it concludes that the better course is to start anew. The matter is, therefore, remanded for a new hearing before a different administrative law judge.

cc: Attorney David J. Ghilardi


[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


(1)( Back ) The commission recognizes that a significant amount of time has passed since this complaint was filed. For that reason, and in the interest of judicial economy, the parties should be afforded a specific opportunity to stipulate to a hearing on the merits, as provided for in Wis. Admin. Code DWD 221.10(3).

(2)( Back ) The transcript, which is cited herein as (TR at __) was prepared on behalf of the complainant by an individual who is not a court reporter, and who apparently does not have experience in the preparation of hearing transcripts. Citations to the transcript have been copied verbatim.

(3)( Back ) Examples of this can be seen on pages 27, 34, 35, and 45 of the transcript.


uploaded 2005/06/06