CEDRIC A JOHNSON, Complainant
KELLY SERVICES, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on December 2, 2005. A timely petition for review was filed. For the reasons set forth in the memorandum opinion, the commission issues the following:
Dated and mailed July 21, 2006
johnsce . rpr : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
This was a two-day hearing in which the respondent appeared by an attorney and the complainant appeared pro se. On the second day of hearing the administrative law judge requested the presence of Capitol Police "to make sure that [he] could conduct this hearing as [he saw] appropriate." (TR at 318.) Not long after the Capitol Police officer arrived at the hearing the administrative law judge asked him to escort the complainant from the hearing room. The administrative law judge then continued the hearing without the complainant's participation. In his decision the administrative law judge stated that he took this drastic step because "[the complainant] was behaving in a way that threatened the safety of himself and the other people present at the hearing."
The record, however, contains nothing to indicate that the complainant was behaving in a threatening or unsafe manner. While the complainant was argumentative with the administrative law judge, and stated that he considered the administrative law judge to be biased and disrespectful, the complainant did not make any statements that could be construed as threatening or violent. Moreover, recognizing the limitations of the written transcript as a means of reflecting the complainant's non-verbal conduct at the hearing, the commission can find nothing in the record to indicate that the complainant was shouting, that he stood up from his seat, approached the respondent's attorney or witnesses, made threatening or menacing gestures, or otherwise behaved in a manner which would create concern for the safety of those in the room. While the administrative law judge admonished the complainant on several occasions to "stop" or "stop this behavior," (TR at 277, 312-316, 373), he did not specify what type of behavior the complainant was to stop. The complainant was never asked to speak more softly, sit down, step back from the witness table, or to desist from engaging in any conduct that could be construed as violent or threatening. To the contrary, a close reading of the transcript suggests that the behavior with which the administrative law judge was most concerned consisted of interrupting and insisting on speaking after the administrative law judge had already ruled on an objection. Such conduct, while perhaps disruptive, does not constitute a safety threat.
The commission notes that the administrative law judge did attempt to create a record of the complainant's conduct after the complainant was escorted from the hearing room by Capitol Police. (TR at 374-376.) However, the commission does not consider this effort adequate to warrant a conclusion that the complainant engaged in violent or unsafe behavior both because it occurred only after the fact, and because the record created by the administrative law judge is insufficient to allow the commission to draw any conclusions about the complainant's conduct or demeanor. The administrative law judge explained that the complainant's removal from the hearing room was necessitated by the body language of the respondent's witness, whom he described as moving into a corner. The administrative law judge stated that there is no requirement to go through something where individuals feel unsafe or threatened. However, the administrative law judge neglected to explain what the complainant was doing to cause the respondent's witness to move into a corner or to feel unsafe or threatened. The respondent's attorney agreed that his witness was fearful and shaking, attributing this, without further elaboration, to the complainant's body language, demeanor, and the "loudness of his tone." (1) (TR at 375-376.) The commission is apparently expected to infer that the complainant acted in a manner so threatening as to cause this extreme reaction in the respondent's witness. Such an inference cannot be drawn from so thin a record.
In determining to set aside the administrative law judge's decision the commission does not find that the complainant's conduct was appropriate, or even that it was non-threatening. Rather, the commission concludes that the record is insufficient to warrant a finding that this was the case. The commission agrees with the administrative law judge that parties and witnesses are not required to participate in a proceeding where they are made to feel unsafe. It has therefore taken the precautionary step of including in its order a requirement that Capitol Police be present throughout the course of the remand hearing.
cc: Attorney Eric H. Rumbaugh
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