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



ERD Case No. 200204189

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 that decision as its own.


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

Dated and mailed June 14, 2005
casetka . rsd : 115 : 9 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


This case was assigned to ALJ DeLaO upon remand.

Hearing was scheduled to be conducted by ALJ DeLaO on March 18, 2005. Prior to that date, she had denied the complainant's requests for a default judgment, for extension of the time period for engaging in discovery, and for her recusal. These requests had been filed on the complainant's behalf by her husband, who was functioning as her representative.

The complainant's husband appeared on her behalf at the March 18 hearing and stated that, due to the complainant's disagreement with these rulings by the ALJ, the complainant did not intend to proceed with the hearing. The complainant was not present at the hearing and her husband did not offer any evidence on her behalf. In a decision dated March 25, 2005, the ALJ dismissed the complainant's charge of discrimination as a result.

As a general rule, a party who disagrees with rulings rendered by an ALJ is required to proceed to hearing, preserving her objections to such rulings on the record for review on appeal. See, Clemons et al. v. Opportunities Industrialization Center of Greater Milwaukee, ERD Case No. 200102575 (LIRC Feb. 14, 2003). If the complainant instead refuses, as here, to proceed with the hearing due to her objections to the ALJ's rulings, and her complaint is dismissed as a result, the complainant is deemed to have waived her objections to these rulings. Clemons, citing Baldwin v. LIRC, 228 Wis.2d 601, 625, 599 N.W.2d 8 (Ct. App. 1999). The commission explained this approach in Clemons, supra, as follows:

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.

The complainant's petition is premised upon her objections to the rulings of the ALJ referenced above. If such objections are deemed, consistent with the rationale articulated in Clemons, supra, to have been waived, and there is no hearing record for the commission to review, a simple affirmance of the ALJ's dismissal decision is appropriate.

The commission, however, has conducted a review of the ALJ's rulings as an alternative basis for its decision to dismiss this case.

Motion for default judgment

The complainant argues that the respondent failed to submit copies of exhibits/list of witnesses at least 10 days prior to the March 18, 2005, hearing as required by the department's administrative rules, and a default judgment should be issued as a result.

First of all, the respondent actually did submit such exhibits/witness list prior to the 2003 date originally scheduled for hearing, i.e., significantly more than 10 days prior to March 18, 2005, and was not required to submit them again. Although ALJ DeLaO mistakenly stated in correspondence to the parties prior to March 18, 2005, that neither party had complied with this prehearing requirement, she later clarified that she had been mistaken in regard to the respondent.

In addition, default judgment is not available under the Wisconsin Fair Employment Act. See, Kemp v. Heinen et al., ERD Case No. 199804076 (LIRC Oct. 27, 2000).

Finally, the complainant argues that she was prejudiced by the fact that the department sent her a copy of the relevant administrative rule which stated that the ALJ "shall" exclude exhibits/witnesses not properly noticed, not that the ALJ "may" do so. Although it is clear that the applicable rule, Wis. Adm. Code § DWD 218.17 states "may," not "shall," and it is not clear how the complainant obtained the copy of the rules upon which she relies in making this argument, the resolution of the default judgment question, in view of the discussion set forth above, would be the same regardless of whether the rule said "shall" or "may," i.e., not only did the respondent comply with the prehearing notice requirements but, in any event, default judgment would not be available here.

Denial of request to extend discovery deadline

ALJ DeLaO had repeatedly advised the parties to "immediately" commence discovery, and that the deadline for completing discovery was February 4, 2005, and the deadline for filing discovery motions was February 11, 2005.

The complainant, who did not file her discovery requests until January 27, 2005, argues that she understood that completing discovery meant presenting her discovery requests to the respondent. However, the complainant should have been aware, as the result of her failure in 2003 to accord the respondent a period of at least 30 days prior to hearing within which to respond to her discovery requests, that this 30-day period must be taken into account when determining when discovery has been completed. For example, in a letter dated October 14, 2003, the complainant requested a postponement of the hearing scheduled to be commenced on October, 23, 2003, because her "discovery has not yet been fulfilled as the 30-day time limit for Zales will not expire until mid-November;" and, in a letter from ALJ Schacht dated October 20, 2003, the complainant's postponement request was denied in part because the complainant "waited until there was inadequate time prior to the hearing for the respondent to respond to your discovery request." Moreover, it should have been apparent that certain types of discovery motions could not be filed until a discovery request has been presented to the opposing party and the 30-day response period has expired, i.e., the February 11, 2005, deadline for discovery motions should have alerted the complainant, particularly in view of the earlier discovery issues in this case, that the establishment of a deadline for filing discovery motions contemplates that discovery has already been completed, through a request and a response, prior to that date.

It should also be noted that this complaint was filed in October of 2002, and that, as a result, the complainant had more than two years to conduct discovery prior to January of 2005, and that she had been repeatedly advised by ALJ DeLaO to "immediately" commence discovery.

ALJ DeLaO correctly denied the complainant's request to extend the deadline for discovery.

Recusal of ALJ

Wisconsin Administrative Code § DWD 218.16 states as follows:

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.

Decision makers in state administrative proceedings enjoy a high presumption of honesty and integrity, and a party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. Lenz v. Humana Insurance Company, ERD Case No. CFR200302809 (LIRC April 28, 2005); Guthrie v. WERC, 111 Wis.2d 447, 331 N.W.2d 331 (1983); State ex rel. DeLuca v. Common Council, 72 Wis.2d 672, 242 N.W.2d 689 (1976).

ALJ DeLaO denied the complainant's request for recusal and made it a part of the file and her decision in this case.

The complainant first argues that such bias was shown during the March 18, 2005, hearing when ALJ DeLaO failed to address her motion for default judgment, which the complainant's husband had presented again at the commencement of the hearing, and threw the motion on the floor. The commission reviewed the recording of the March 18 hearing, and found that ALJ DeLaO handled this hearing calmly, capably, and professionally at all times. The ALJ had already denied the complainant's motion for default judgment prior to hearing and, since no persuasive reason was offered by the complainant's husband for reconsidering her earlier ruling, did not do so. Throwing the complainant's written motion on the floor in anger or disrespect would have been inconsistent with the professional manner exhibited by ALJ DeLaO in her written correspondence with the parties and in her hearing demeanor.

The complainant next argues that ALJ DeLaO's interactions with the complainant's husband during the phone conversation he initiated on February 3, 2005, demonstrate that she was biased. Specifically, the complainant alleges that ALJ DeLaO indicated during this conversation that she would deny any future motions filed by the complainant. In view of the meticulous and sound approach utilized by ALJ DeLaO in researching, deciding, and explaining her rulings on the motions offered by the parties here, and in view of the approach she utilized in addressing the complainant's motion for default judgment at the March 18 hearing, it is more plausible that, during this conversation, as she indicated in the letter she prepared summarizing what had occurred, ALJ DeLaO told the complainant's husband that, if the complainant offered no new facts or argument, she would decide the motions the same way. This certainly does not demonstrate bias.

The complainant further argues in regard to this conversation that her due process rights were violated when ALJ DeLaO conversed with her husband about this case without the complainant's permission and without verifying her husband's identity. First of all, the complainant had clearly indicated in prior correspondence and proceedings in this matter that she had given her husband authority to act as her representative, and he had done so. The complainant has failed to explain why there would have been any reason for ALJ DeLaO to question that the individual speaking to her on the phone was someone other than the complainant's husband, and, in fact, it was the complainant's husband. The complainant references the rule against ex parte communications. However, the party with whom the ALJ was communicating was the complainant, through her designated representative, so her objection on this basis is puzzling and not meritorious.

In regard to this same conversation, the complainant also argues that ALJ DeLaO yelled and threatened the complainant's husband. Again, this would be inconsistent with the professional manner exhibited by ALJ DeLaO in her written correspondence and at hearing.

The complainant further argues that the fact that ALJ DeLaO dispensed legal advice to the respondent demonstrates her bias against the complainant. Specifically, the complainant alleges that the fact that ALJ DeLaO stated in a letter to the parties that she would not require the respondent to file a response to the complainant's untimely discovery request constituted the dispensing of legal advice. However, the actions of ALJ DeLaO in this regard were in the nature of a ruling, and were entirely appropriate given the matters under consideration at the time.

Finally, the complainant asserts that ALJ DeLaO's knowledge that the complainant had filed a grievance against her with the Office of Lawyer Regulation (OLR) relating to her handling of this matter would necessarily cause her to be biased against the complainant. However, permitting a litigant to effect the disqualification of an administrative law judge who has ruled against them by simply filing a grievance against the ALJ with the OLR would violate the integrity of the administrative process. In the absence of some other indicia of a cognizable personal or financial interest, or of conduct evidencing a lack of objectivity, which, as discussed above, is not present here, the existence of an OLR grievance, without more, would not justify recusal of an ALJ under the circumstances present here.

ALJ DeLaO correctly denied the complainant's request for her recusal.

cc: Attorney Gregory M. Wesley

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uploaded 2005/06/20