JOHN ROME, Complainant

FIDUCIARY REAL ESTATE, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a Ruling on Motion to Dismiss in this matter. A timely petition for review was filed.

Based on its review, and for the reasons set forth in the Memorandum Opinion attached hereto, the commission makes the following:

The Ruling on Motion to Dismiss issued by the Administrative Law Judge in this matter on July 16, 2009, is set aside, and this matter is remanded to the Equal Rights Division for an evidentiary hearing, before a different ALJ, on the respondent's motion to dismiss

Dated and mailed September 18, 2009
romejoh . rrr : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

An initial determination (ID) of no probable cause was issued on September 11, 2008. This ID stated that the dismissal of the charge would become final unless a written appeal was received by the Equal Rights Division (ERD) within 30 days of the date of issue.

According to ERD, its records indicate that no written appeal was received on or before the 30th day, i.e., October 13, 2008.

By motion dated December 8, 2008, respondent filed a motion to dismiss the complainant's charge. An evidentiary hearing was not held on the motion.

The ALJ issued his decision granting the motion to dismiss on July 16, 2009.

In his decision, the ALJ states:

In ruling on a (interim) motion to dismiss...,disputed facts must be construed in the light most favorable to the Complainant...

However, although the ALJ recited the principle that, under the circumstances present here, disputed facts must be construed in the light most favorable to the complainant, he did not follow this principle in ruling on the motion to dismiss.

The complainant contends that he sent appeals to ERD prior to the October 13, 2008, filing deadline, and has offered three documents he claims constitute his appeals. The ALJ, finding that "there is no objective evidence to support" this contention, did not credit it.

In order to decide the motion to dismiss, it is necessary to resolve a central factual dispute, i.e., whether the complainant in fact prepared and transmitted an appeal prior to the October 13, 2008, deadline. It is inappropriate to resolve this factual dispute without an evidentiary hearing, unless the complainant's contention is inherently incredible. Although the documents provided by the complainant are certainly questionable, they are not inherently incredible.

The ALJ made findings as to disputed facts, and resolved credibility issues, without the benefit of an evidentiary hearing. This is a violation of the principle he stated in his decision, and a fundamental denial of due process. See, Burton v. United Government Services LLC, ERD Case No. 200303077 (LIRC Dec. 21, 2007); Bedynek-Stumm v. City of Madison, ERD Case No. CR200003354 (LIRC Nov. 30, 2001).

As the result, the ALJ's ruling has been set aside, and this matter is remanded to the ERD for an evidentiary hearing, before a different ALJ, on the respondent's motion to dismiss.

cc: Attorney Jill Pedigo Hall

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uploaded 2009/10/02