JAIME N EWING, Complainant
KOHL'S DEPARTMENT STORES, Respondent
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 the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed
July 22, 2013
ewingja_rsd . doc : 107 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
In her petition for commission review, the complainant requests a new hearing on the grounds that the attorney who represented her at the hearing failed to provide adequate representation in a number of respects. She complained that her attorney refused to contact her psychiatrist in order to gather information about her medical condition or to arrange for the psychiatrist to testify at the hearing; failed to contact the complainant in a timely manner to prepare for the hearing; and failed to bring supporting documentation to the hearing.
The complainant's attorney had named Dr. Joseph Burgarino, identified at hearing as the complainant's psychiatrist at the relevant time, on the complainant's disclosure of witnesses and had served that disclosure on the respondent approximately 10 days before the hearing, but the attorney reported at the hearing that Dr. Burgarino was not present to testify and had not been subpoenaed. The ALJ appropriately declined to address Dr. Burgarino's absence from the hearing in view of the fact that he had not been subpoenaed. The complainant's attorney also offered into evidence a set of documents which she described as certified medical records from Dr. Burgarino's office, but acknowledged that copies of those records had not been disclosed to the respondent prior to hearing. The respondent had not conceded the question of whether the complainant was disabled and objected to admission of the documents, arguing that, because of their non-disclosure, the documents would result in unfair surprise and prejudice to the respondent if admitted. The respondent's attorney reported that he had not seen the documents prior to their disclosure at the hearing. The respondent was not in a position, on the day of hearing, to review the documents or present a case against the documents. The ALJ properly exercised his discretion in denying admission of the documents. Walker v. Masterson Co., ERD Case No. 9353700 (LIRC Oct. 4, 1995) ("[T]he purpose of the notice requirement for witnesses and exhibits is to give the opposing party proper opportunity to prepare its case against such witnesses and exhibits. A lack of notice prejudices the party that did not receive it, and the complainant offered no legitimate reason for his failure to have met the notice requirements."). As to the complainant's offering to present the complainant's current physician as a witness by telephone, the respondent again objected on the grounds of unfair surprise and prejudice, since that physician was not named in the complainant's pre-hearing disclosure of witnesses. Again, the ALJ properly exercised his discretion in refusing to allow that witness to testify. Walker, supra.
Assuming for purposes of argument that the complainant's attorney bears responsibility for the ALJ's evidentiary rulings against the complainant, such a fact would not provide a basis for setting aside the ALJ's decision and granting a rehearing. In a number of cases similar to this one, the commission has followed the guidance of the Wisconsin Supreme Court in Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 284, 470 N.W.2d 859 (1991), that "...it is more equitable to allow the adverse consequences to fall upon the shoulders of the party who has chosen the attorney, rather than on the adversary and the other litigants who await their day in court." The court also noted that a complainant would have a possible remedy in a malpractice action, particularly if a dismissal is entirely attributable to the attorney's conduct. Id. at 285. Where it is alleged that the actions of an attorney adversely impacted the party who retained the attorney in a fair employment hearing, the commission has consistently held that the attorney's actions do not provide a basis for setting aside an ALJ's decision or granting further hearing. Crawford v. Wiza Industries, LLC, ERD Case No. 200503691 (LIRC Oct. 20, 2006), citing Hamilton v. Northwestern Elevator Co., Inc., ERD Case No. 200003827 (LIRC Dec. 10, 2002) (Complainant's failure to appear at hearing, allegedly on his attorney's advice that the hearing had been adjourned, was not a basis for setting aside the dismissal for failure to appear); Squires v. Montex, Inc., ERD Case No. 200100708 (LIRC March 15, 2002) (Complainant's allegation that her attorney was responsible for the ALJ's dismissal for failure to cooperate in discovery was not a basis for setting aside ALJ's decision); Patek v. Waukesha Engine Div., Dresser Industries, ERD Case No. 9433716 (LIRC Aug. 11, 1995) (Complainant's assertion that her attorney provided inadequate legal representation by failing to present certain medical evidence was not an adequate basis for setting aside ALJ's decision); Neuberger v. Twin City Storm Sash Company, ERD Case No. 9000537 (LIRC Jan. 22, 1992) (Complainant's assertion that her attorney failed to submit a timely witness and exhibit list and failed to timely amend the complaint was not an adequate basis to set aside the ALJ's decision).
Although the complainant has not specifically challenged any of the ALJ's evidentiary rulings on grounds other than inadequate legal representation, and has not challenged any specific findings of fact or conclusions of law of the ALJ, the commission has reviewed the record for the purpose of determining whether the ALJ's findings of fact and conclusions of law are supported by the record and the law, and has concluded that they are. Significant to the ALJ's decision was the lack of expert medical evidence showing that the complainant was an individual with a disability as defined in the Wisconsin Fair Employment Act. Particularly where an alleged disability is not apparent to a layperson, as was the case here, expert testimony must be adduced on the existence, nature, extent and permanency of the impairment, because those matters cannot be ascertained without special knowledge, skill and experience beyond the ordinary. Green-Brown v. Midwest Express Airlines, ERD Case No. 200104139 (LIRC Sep. 16, 2004). The ALJ properly concluded that such evidence was lacking in this case, even sufficient to support probable cause. See, Fields v. State of Wisconsin, UW Hospital & Clinics Authority and/or Board, ERD Case No. 200302716 (LIRC Feb. 12, 2007). The complainant's lack of evidence of disability in her case-in-chief created a clear circumstance in which the complainant could not reasonably prevail on her disability claims, (1) and therefore the granting of the motion to dismiss at the close of the complainant's case was appropriate. Arvin v. C & D Technologies, Inc., ERD Case No. 200402097 (LIRC Oct. 31, 2008).
cc:
ATTORNEY KEVIN A CHRISTENSEN
LEIB & KATT LLC
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