ROBBIE L. PHILLIPS, Complainant
MILWAUKEE COUNTY MEDICAL COMPLEX, Respondent
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 February 14, 1989. Complainant filed a timely petition for review of the Administrative Law' s decision and Respondent filed a response to Complainant' s appeal.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:
1. The Respondent Milwaukee County Medical Complex ( "Medical Complex") is a medical facility operated by Milwaukee County in Milwaukee, Wisconsin.
2. Complainant Robbie L. Phillips ("Phillips"), a black person, was first employed by Milwaukee County in 1981 as a clerk-typist II. She worked as a clerk-typist II in a variety of County offices including (chronologically) Medical Records at the Medical Complex, the Energy Assistance Program, the Family Support Program at the Courthouse, another position in Medical Records at the Medical Complex, and a position in Delinquent Accounts at the Medical complex. In 1985 she took a position, still as a clerk-typist II, with the Physical Medicine and Therapy Unit at the Medical Complex.
3. Phillips' duties as a clerk-typist II in the Physical Medicine and Therapy Unit included typing of reports, letters, and memos. This was similar work to that which she had done in past positions. However, her work also involved typing drawbacks and entry materials, use of different documents than she had previously worked with, and use of a word processor rather than a computer. Her other duties involved being a receptionist, answering the telephone, and handling appointments.
4. Phillips' supervisor in the Physical Medicine and Therapy Unit was Barb Dunham, a physical therapist and the director and supervisor of the unit. Dunham is white.
5. When Phillips began working in the Physical Medicine and Therapy Unit in early 1985, her co-workers were Patricia Rickert and Chris Paccagnella, both clerk-typist IIs. Paccagnella left that position in approximately December 1985 and shortly thereafter she was replaced by Kathleen Orcholski, also a clerk-typist II. Rickert, Paccagnella and Orcholski are white.
6. Dunham found Phillips' work to be inadequate in terms of quality. She received many complaints from doctors and supervisors about documents typed by Phillips having to be returned because of errors.
7. Dunham found the quantity of Phillips' work to be inadequate. In July 1986, Phillips' production was quite low compared to that of her co-workers, resulting in a significant backlog being built up by August 1986. Phillips' co-workers reluctantly agreed to do some of her work, in addition to their own, to eliminate the backlog, but told Barb Eddy, Dunham's assistant, that they would not continue to do so. In October 1986, over 40 untyped conference reports were found piled on Phillips' desk; these reports should have been typed well before the point at which they were found.
8. Dunham was dissatisfied with the high rate of absenteeism Phillips showed. From the period from January 1986 through October 1986, while Orcholski had 16 hours of absence and Rickert had 61 hours of absence, Phillips had 130 hours of absence.
9. Dunham found Phillips' performance to be inadequate in terms of relations with her co-workers. On May 9, 1986, Dunham discussed with Phillips the fact that she had been engaging in unacceptable behavior relating to arguing with her co-workers. On September 8, 1986, a meeting was held between Dunham, Phillips and Phillips' union representative regarding continued unacceptable behavior of that nature.
10. Phillips got along poorly with Rickert, Paccagnella and Orcholski. Phillips was on occasion unfriendly and unpleasant to them, and they were on occasion unfriendly and unpleasant to her, but neither Rickert, Paccagnella or Orcholski used racial slurs towards Phillips or made any overtly racial remarks to her. The mutual dislike between Phillips and her co, whose ever fault it was, was not a product of racial bias.
11. Dunham did not use racial slurs towards Phillips or make any overtly racial remarks to her. When Phillips complained to Dunham that her co-workers were directing racial slurs towards her, Dunham talked to Phillips' co-workers and told them that such conduct would not be acceptable if it was occurring.
12. No one in Phillips' workplace used racial slurs towards Phillips or made overtly racial remarks to her or about her in her presence.
13. In December 1986, Dunham gave Phillips an evaluation in which she faulted her for lack of cooperation with fellow employes, low quantity of work, excessive absence, and need to improve accuracy and neatness of the work product. Dunham denied Phillips a wage increase at this time as a result of her conclusion that Phillips' performance was inadequate. Phillips' race was not a factor in Dunham's poor evaluation of her or in her decision to deny her a wage increase.
Based on the Findings of Fact made above, the Commission now makes the following:
1. The Respondent, Milwaukee County Medical Complex, is an employer within the meaning of the Wisconsin Fair Employment Act.
2. The Milwaukee County Medical Complex did not discriminate against Robbie Phillips because of her race, in violation of the Wisconsin Fair Employment Act, in regard to racial harassment or denial of a wage increase.
Based on the Findings of Fact and Conclusions of Law made above, the Commission now makes the following:
That the complaint in this matter be dismissed.
Dated and mailed September 27, 1989
/s/ Kevin C. Potter, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
This case concerns the allegations of Robbie Phillips, a clerk-typist II working in the Physical Medicine and Therapy Unit at the Milwaukee County Medical Complex, that she was subjected to racial harassment by her co-workers and by her supervisor, and that she was given a poor evaluation and denied a wage increase because of her, in violation of the Wisconsin Fair Employment Act.
Phillips has claimed, in her arguments to the Commission, that the Administrative Law Judge who heard her case and ruled against her, was biased against both her and her representatives at hearing, and that this bias denied her a fair and impartial decision. She also contends that, contrary to the findings of the Administrative Law Judge, she was racially harassed and was denied a wage increase because of her race.
The Commission has carefully reviewed the record in this matter, and based upon this review, and for the reasons set forth hereunder, it has arrived at the same result as the Administrative Law Judge.
Bias of Administrative Law Judge
Phillips points to two respects in which the Administrative Law Judge allegedly showed bias. First, she asserts that he criticized her representatives in connection with an amended complaint offered on her behalf, making comments concerning an unrelated case. Second, she asserts that he asked her if she had a gun when she first came into the hearing room, stating that he was concerned about the safety of witnesses.
Based on a review of the record and the hearing tapes, the Commission finds that these allegations are essentially correct.
On October 7, 1988, an amended charge of discrimination was filed on Phillips' behalf, alleging handicap discrimination and illegal retaliation in respect to the treatment of Phillips at work and with respect to her then recent termination. At the first day of hearing on November 3, 1988, Phillips was represented by Attorney Joseph Radtke. Also present, assisting Radtke, was Myles Notaro, a non-lawyer assistant employed by Radtke. After a few innocuous preliminary procedural matters were addressed at the beginning of the hearing, the Administrative Law Judge made the following comments:
"Mr. Notaro has a reputation around our office for three things. One is for doing what many ALJs view as practicing law without a license, secondly for, when doing so, to not do so competently, and third, to abuse our process. This agency has a memory. We will give anybody who appears before us the view that anything that is done is legitimate until it is shown otherwise. Part of the situation today is that Mr. Notaro and the firm that he used to work for has a particular reputation here of abusing our process and we do not stand for abuse of this process. This document that I have before me, I have a sense of what is going on in cases, I practiced privately, and have some sense of what's going, this smelled like a delaying tactic, I'll be clear on it, and I do not take such things lightly. It is in our view as far as how this is dealt with, it is my policy to treat all legitimate claims with great respect to give them time. I will, however, not allow abuses of any other party' s time for something that should have been done far before. If you are not ready to proceed in dealing with this amendment then I will simply rule on the fact that, on that ground..."
The Administrative Law Judge was evidently referring to the amended complaint which had been filed on Phillips' behalf. Attorney Radtke explained how he had been retained to represent Ms. Phillips after her former attorney, Alan Eisenberg, was disbarred, and how Mr. Notaro, who had formerly been employed by Mr. Notaro, was hired by Mr. Radtke's firm to assist it in representing a number of clients who had been transferred from Mr. Eisenberg's firm. Radtke also denied that the amended complaint constituted an abuse of process or an effort to delay the proceeding, noting that the Complainant had in fact opposed a request for adjournment proposed by the other, and that, far from hoping that the amended complaint would delay the proceedings, his firm had anticipated that the amended complaint would be handled as a separate matter from the then pending complaint, thus not delaying the matter. The Administrative Law Judge then made a number of comments criticizing the amended complaint for certain errors in the spellings of names and for the absence of certain dates, calling it "improperly drafted and sloppy, " and criticizing Attorney Radtke for allegedly not reviewing it after it was (apparently) drafted by Mr. Notaro. After some further discussion concerning the timeliness of various aspects of the amended complaint, Attorney Radtke requested to be allowed to make a response to the comments of the Administrative Law Judge concerning Mr. Notaro, and in that connection the Administrative Law Judge responded:
"He can deal with that by changing his practices in the future. My statements today regarding what was going on today, even though I will still view the facts of this case in the fashion regardless of Mr. Notaro's, or anything I said about that or his former office and its importance. I believe to understand that this process requires a lot of good faith on a lot of different people' s part, and when situations occur that results into - uh -- behavior that I as an ALJ view as detrimental to the process, it's important to remember that there are consequences to that. His statement today, I'm not going to waste other parties' -- if you wish to submit any documents to me regarding an explanation I will look at them but I am not going to waste the other people's party here dealing with Mr. Notaro when the issue here today is whether or not Phillips was discriminated against."
After the Administrative Law Judge stated the issues of the complaint and summarized his ruling on the amended complaint, Attorney Radtke made an oral motion that the Judge disqualify himself for bias. The Administrative Law Judge responded immediately, not allowing any argument by Radtke in support of the motion, by stating:
"I will not. I will not because it doesn't, I am not going to, to, mmm, I feel still completely capable of judging the merits of the case and capable of separating the situation of what happened regarding Phillips and the issue of the reputation of, based on prior contacts with certain people, and the way certain other things have been conducted, so I will not do so, and I don' t think that it's, I do not believe that it's warranted."
On November 10, 1988, following the first day of hearing but prior to the second day of hearing on December 2, 1988, the Administrative Law Judge wrote a letter to Attorney Radtke in which he stated:
"On November 3, 1988 I made some comments during my treatment of your amended complaint as a motion for leave to amend. I believe it is a misinterpretation of my comments to conclude either that I can speak for other administrative law judges, that the Division has any policy regarding your firm, or that you would get anything other than an impartial hearing from any of the other ALJs. I have no intention of suggesting any of these things. I believe that each administrative law judge in this Division will give any client you represent a fair hearing. Moreover, I am convinced that I am giving, and will give, an impartial hearing to your client, and that my rulings will be on the merits of the case, and not on my view of their attorney. I decided when I made my ruling that I would stay on the case, and I still come to the same conclusion after considerable reflection. I have no stake in the outcome of the case. I had, and still have, no preconceived idea of whether or not your client has been discriminated against. I will not again bring up the issues I addressed or consider them in my rulings."
The other allegation of bias against the Administrative Law Judge concerns the claim that he asked Phillips, as she entered the room at the beginning of the hearing, whether she had a gun, stating that he was concerned about the safety of witnesses. While no such incident is reflected on the hearing tapes, the Commission nevertheless concludes that it occurred as Phillips alleges, most probably prior to the time that the Administrative Law Judge turned on his tape recorder and opened the record. This conclusion is based on the presence in the Division' s files of a memorandum from the Director of the Legal Services Bureau to the Administrative Law Judge, dated November 1, 1988, in which the Director indicates that a subpoenaed witness, Chris Paccagnella, had telephoned him to ask if Phillips would be checked for weapons before the hearing on November 3, 1988, indicating that she was fearful about what could happen to her since she consider the Complainant to be unstable. The Director's memo reflects that he advised the caller that it was not the normal practice of the Division to frisk complainants before hearings commence, and that he asked her what led her to conclude that it would be advisable to check the Complainant for weapons and that she indicated that the Complainant was on a lot of medication and had made a lot of threats. According to the memo, the Director advised the caller that the matter would be for the Administrative Law Judge to decide. A handwritten note on the memorandum reflects that the Judge made four attempts to telephone Paccagnella, on November 2, 1988, but that they were unsuccessful. The Commission infers from this that he probably did inquire of Phillips whether she had a gun when she arrived at the hearing on the following day, as Phillips asserts.
An administrative law judge should recuse himself if he determines that he cannot be impartial in a matter. He should also recuse himself, even in cases in which he subjectively believes that he can judge a matter impartially, where his impartiality could reasonably be questioned by others because of an appearance of bias on his part. Guthrie v. WERC, 107 Wis. 2d 306, 314 (Ct. App. 1982), aff'd on other grds., 111 Wis. 2d 447 (1983), State v. Asfoor, 75 Wis. 2d 411, 436 (1977), State v. Walberg, 109 Wis. 2d 96, 106 (1982). (1) "A claim of judicial prejudice against a party based on bias against the attorney is not essentially different from any other claim of judicial prejudice... While judicial prejudice against the attorney does not generally or presumptively constitute bias against the client, if it can be shown that the bias toward counsel adversely affected the client's interests, then recusal is required." State v. Walberg, 109 Wis. 2d at 106-07. A mere showing of antagonism or of a strained relationship between counsel and the court is not sufficient to require disqualification. i, 109 Wis. 2d at 107. Thus, in Kane v. LIRC (Brown County Circuit, No. 83CV2914, February 18, 1985), disqualification of the Administrative Law Judge was not found necessary in an equal rights case in which the relationship between the judge and counsel for the Complainant deteriorated during hearing in connection with numerous arguments over evidentiary points and the adequacy of the evidence. However, the Commission considers that the significance of apparent judicial bias against counsel may be greater in cases in which apparent bias is not evidently connected to the case in which both are participating, but rather arises from something external to that case. This was apparently the situation here. The comments of the Administrative Law Judge, quoted above, make it apparent that he brought to the hearing a predisposition to view negatively the representatives of Ms. Phillips. This predisposition did not arise merely from his views as to the adequacy or intentions behind the amended complaint which had been filed on Phillips' behalf; there were obviously other sources for this predisposition. Thus, the Administrative Law Judge referred to Mr. Notaro having "a reputation around our office... for doing what many ALJs view as" practicing law without a license, not doing so competently, and abusing process. He referred to the "memory" of the agency, the "reputation" of Notaro before the agency, and the issue of reputation "based on prior contacts with certain people." That these comments could create the appearance that the Administrative Law Judge was biased against Phillips' representatives in connection with matters external to the case at hand is borne out by the fact that this is precisely what Phillips, a lay person, identified as a problem in her arguments to the Commission: that the Administrative Law Judge "made unnecessary comments to her representative regarding a previous case." The Commission thus concludes that the Administrative Law Judge's comments created the appearance that he was biased against the representatives for Ms. Phillips for reasons external to the case.
Furthermore, the Administrative Law Judge's conduct, in confronting Phillips when she entered the hearing room and asking her if she had a gun, is disturbing. Entirely apart from the question of whether his conduct may be seen as evidencing actual bias on the Judge's part toward Phillips, it certainly created the appearance of such bias. The informant, on the basis of whose unverified suspicion the Judge apparently acted, was a former co-worker who Phillips accused of racially harassing her. Confronting Phillips upon her entrance into the hearing room, and asking her if she was carrying a gun, not only created the appearance that the Administrative Law Judge had arrived at a prejudgment concerning Ms. Phillips' character, but also could be seen as indicating a predisposition to credit Paccagnella over Phillips.
The Commission concludes that the concurrence of these two events -- the inquiry of Phillips as to whether she had a gun, and the comments during the hearing concerning her representatives -- created an appearance of partiality on the part of the Administrative Law Judge serious enough that disqualification was warranted. The issue thus presented is whether, as a consequence of the Administrative Law Judge's failure to remove himself, Phillips was denied a fair hearing or an impartial decision. Based on its careful review of the record, the Commission has considered that she was not, and that the Administrative Law Judge's error, in failing to remove himself from the case, was harmless.
There is no claim by Phillips and there is no indication in the record, that she was restricted in any way from making the record she felt was relevant to her complaint. There was thus no denial of a fair hearing. Furthermore, the Commission considers it unnecessary to attempt to determine if the decision rendered was impartial. In reviewing decisions of administrative law judges, the Commission engages in a completely independent reevaluation of all the evidence, and it makes a
de novo determination of all issues in the case. Being aware of the problems presented in this case by the appearance of partiality on the part of the Administrative Law Judge, the Commission has taken particular care to disregard the Administrative Law Judge's decision and to conduct its own independent evaluation of the record. As is noted below in the discussion of the merits, the Commission has arrived at the same conclusion concerning the relative credibility of Phillips as a witness, as did the Administrative Law Judge, but in doing so it has placed no reliance whatsoever on the indications of the Administration Law Judge as to his impressions concerning the credibility of witnesses, but has instead relied exclusively on its analysis of the evidence and its own assessment of credibility based on the content of the evidence offered.
The Merits
Phillips asserts that she was subjected to overtly racial harassment by her co-workers, her supervisor, and others. The employer' s witnesses uniformly denied these allegations. The Commission arrived at the conclusion that Phillips was a less than credible witness, bases on internal inconsistencies in her representations concerning the facts of the case. First, and most significantly, she made inconsistent assertions as to the date of an incident on which she alleges one of her two co-workers said to a doctor that they were going to "get rid of that nigger" and the doctor responded "you won't see the smile off my face. " In her complaint, Phillips alleged that this occurred on February 19, 1987. However, in her testimony at hearing she asserted that the same conversation occurred in the fall of 1985, and she then appeared to testify that it occurred in the spring of 1986. Second, although Phillips alleged in her complaint that Dunham had made statements that "blacks are not qualified," Phillips offered no direct testimony supporting this allegation when she testified at hearing. Third, although Phillips asserted in her complaint that she received no warnings of unsatisfactory performance prior to November 1986, notes in the Respondent's Exhibit 6 make it clear that in May 1986 she was counseled concerning her unacceptable behavior relating to arguing with co-workers and her need to cooperate with the other two secretaries, and that in September 1986 she was counseled concerning unacceptable behavior of arguing with co-workers and a threat made to a co-worker. Her claim that she received no warnings of unsatisfactory performance prior to November 1986 is thus seen as an unwarranted exaggeration. Based on these considerations, the Commission concluded that Phillips' testimony was less credible than that of the other witnesses, and that Phillips' claims of racial harassment, denied by those other witnesses, could not be credited.
The Commission also found the testimony of Mary Davis unconvincing. First, it is difficult to determine from her identification (a tall blonde woman) who she was testifying about. Second, her initial reluctance to testify, and her unconvincing (in view of the complaint) claim that she did not know Phillips outside of work, rendered her testimony doubtful.
Phillips' assertion that she complained to Dunham of racial harassment by her co-workers but that Dunham did nothing about it, is unfounded. First, as noted above, the Commission concludes that no racial harassment occurred. In any event, the evidence shows that Dunham' response was appropriate; when Phillips brought the allegations to her, Dunham did speak to the co-workers, advising them that such conduct would be unacceptable if it was occurring.
Phillips was denied a wage increase because her performance was poor in many respects. The evidence leads the Commission to conclude that Dunham's evaluation of Phillips' performance was untainted by racial bias, and was a reflection of actual poor performance on the part of Phillips. Although Phillips originally contended, apparently, that her performance was not in fact poor, her position now seems to be that any deficiencies in her performance were caused by the racial harassment she allegedly suffered, which, Phillips contends, interfered with her ability to work adequately and also contributed to her excessive absences. Again, the Commission would note that it has concluded that no racial harassment occurred. In any event, Phillips failed to demonstrate that any such harassment, had it occurred, would have had the result she alleges for it, of impairing her work performance.
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