LAURA A KORTH, Complainant
CHI TOWING INC, Respondent
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 makes the following:
The decision of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for continued proceedings before an administrative law judge and, after the presentation of all the evidence by the parties, the issuance of a new decision on the complainant's complaint of discrimination.
Dated and mailed
November 29, 2013
korthla_rrr . doc : 107 : 747
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
David B. Falstad, Commissioner
Summary of the evidence presented at hearing
The complainant worked as a dispatcher for the respondent, a towing company. She worked third shift, from midnight to 8 a.m. Her supervisor was Gelane Milczarek.
On June 15, 2010 the complainant visited her doctor and discovered that she was pregnant. She testified that she informed Milczarek of her pregnancy on either June 15th or 16th. The complainant had to leave work early during her shift on June 21st due to stomach pains. She saw her doctor and obtained a letter dated June 22, 2010 from the doctor, excusing her from work on June 21 and 22 due to complications with her pregnancy. The complainant remained off work through her shift on June 27th due to illness related to her pregnancy. She obtained a second letter from her doctor dated June 24, 2010, excusing her from work through June 27th. That letter did not mention pregnancy. The complainant testified that she handed the June 22nd letter to Milczarek, and faxed the June 24th letter to the employer on June 24th.
Milczarek testified that she did not recall a date when the complainant told her she was pregnant. She denied receiving the doctor's June 22nd letter, but acknowledged receiving the June 24th letter. Milczarek stopped short of admitting that she knew the complainant was pregnant, only going so far as to say she was aware of a rumor at work that she was pregnant. She acknowledged, however, that in a document she wrote regarding the complainant's separation she stated that "[w]e were very concerned b/c she said she was having problems with her pregnancy."
The complainant worked her normal shift from midnight to 8 a.m. on June 28th. The critical dispute in the evidence concerns what happened regarding the complainant's next shift. The complainant testified that at about 11 p.m. on June 28th, an hour before her shift was to start, Milczarek telephoned her and said she did not think the complainant was a good fit to work there anymore. The complainant asked if she had done anything wrong, and Milczarek said she had not done anything wrong. The complainant asked why she was not a good fit, and Milczarek replied because she was pregnant. The complainant said the employer could not fire her for being pregnant, and Milczarek just repeated that she was not a good fit. The complainant's boyfriend testified that he was present when the telephone call occurred, and that immediately after the call the complainant was crying and said to him that she had been terminated from her job because she was pregnant.
Milczarek denied that she called the complainant prior to the start of her June 29th shift, and denied that she fired the complainant. She testified that the complainant did not show up for her shift at midnight on June 29th, and that she called the complainant's telephone number at about 12:15 a.m. to ask her why she did not show up for work, and left a message for her. Milczarek contended that the complainant was a no-call/no-show on June 29th through July 2nd.
Respondent's attempt to introduce an exhibit
The respondent, appearing without legal representation, sought to bolster Milczarek's testimony regarding the events of June 28th and 29th by presenting a document identified as a page from a Verizon billing statement, listing phone calls made and received in late June 2010 for a phone number belonging to Milczarek. It purportedly supported Milczarek's testimony that she did not make a phone call to the complainant before the start of the complainant's shift at midnight on June 29, 2010, but instead called the complainant at 12:17 a.m., in order to ask her why she was not at work. This proposed evidence, then, challenges the complainant's contention that Milczarek called the complainant about one hour before midnight and told her that her employment was terminated because she was pregnant. While it would by no means be conclusive evidence that Milczarek did not call the complainant before midnight, it would be relevant to the central factual matter in dispute between the parties, and its exclusion may have contributed to the outcome of the proceeding. It is necessary, therefore, to consider whether the ALJ erred in excluding it, because if he did, the error would not have been harmless. See Obasi v. Milwaukee School of Engineering, ERD Case No. CR201003882 (LIRC Oct. 14, 2013) (an error by the trial forum would be grounds for reversal if the error affected the substantial rights of a party).
As soon as Milczarek indicated that she had a document that supported her testimony, the complainant's attorney objected on the grounds that the document was not disclosed prior to hearing in compliance with Wis. Admin. Code § DWD 218.17. There is no dispute that the respondent failed to make any disclosure to the complainant pursuant to this rule. The rule states in part:
The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not reasonably have anticipated using prior to the hearing. (1)
Interpreting the rule, the commission noted in Pohlen v. General Electric Company, ERD Case No. 8751496 (LIRC Apr. 18, 1991) that the phrase "may exclude" was intended to give the ALJ discretion to exclude exhibits that were not disclosed in compliance with the rule, but was not intended to allow ALJs to exclude exhibits for non-compliance with the rule in the absence of prejudice resulting from the non-compliance. The standard interpretation of the rule is set out in Berglund v. The Post Crescent Company, ERD Case No. 199900817 (LIRC Jan. 31, 2001):
The paramount consideration in applying the rule must be its purpose to protect parties from surprise and to protect the fairness and the due process of the proceedings, so that in a case in which a party would not have been surprised or prejudiced by allowing testimony, it should be allowed.
See also Hansen v. Airborne Freight Corp., ERD Case No. 8400179 (LIRC May 21, 1987); Scott v. Sno Bird Trailer Company, ERD Case No. 8802744 (LIRC Dec. 19, 1990). The commission requires that the party requesting exclusion show he or she was prejudiced by an untimely disclosure of an exhibit. Peace v. Milwaukee Plating Company, ERD Case No. 8951436 (LIRC Aug. 21, 1992).
The record does not show that the ALJ asked for any statement from the complainant's attorney regarding prejudice that would be caused by admission of the exhibit, and the complainant's attorney did not volunteer one. Instead, the ALJ immediately referred to the document as something that he was excluding. When the complainant's attorney added that the document also was never provided to the complainant in discovery, the ALJ asked the attorney if he asked for such a document in discovery, to which the attorney replied "We asked for everything." That was sufficient for the ALJ; he did not ask to review the complainant's discovery requests, and so he did not identify a discovery request that should have caused the respondent to produce the document in discovery.
Later in the proceedings, unconnected with the exclusion of the exhibit, the respondent's discovery answers were offered into evidence and admitted. They showed the following response to Interrogatory No. 18:
Gelane Milczarek has been a customer with Verizon Wireless since September 4, 2008 and has paid for all copies of her Verizon documents and she has all phone records for your review if needed and will give her personal number if needed. All copies are at C.H.I. Towing Service Inc. for review. Gelane Milczarek will sit down one on one with her phone records as that is her privacy.
The complainant's attorney, then, seems to have been put on notice that it had the opportunity to review Milczarek's Verizon records prior to hearing. This opens the question of whether the admission of the exhibit would have been an unfair surprise to the complainant. Unfortunately, because the ALJ made no inquiry into whether the complainant would have been prejudiced by admission of the Verizon billing statement, the question raised by the respondent's discovery response above was left unexplored.
Critical to the question of whether an ALJ properly exercised discretion in excluding an exhibit pursuant to Wis. Admin. Code § DWD 218.7 is whether the ALJ "balance[d] the equities as between the parties before refusing to admit" a proposed exhibit. Rutherford v. LIRC, 2008 WI App 66, ΒΆ 29, 309 Wis.2d 498, 514, 752 N.W.2d 897 (emphasis added). The ALJ abused his discretion in this matter by denying admission of a proposed exhibit before fairly balancing the equities of the parties, and without eliciting a statement from the complainant as to why she would be prejudiced by admission of the proposed exhibit. Since the ruling may have affected substantial rights of the respondent, the commission remands the matter for a new hearing and decision.
cc:
ATTORNEY CHRISTOPHER M KLOTH
MCDONALD & KLOTH LLC
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