State of Wisconsin

Labor and Industry Review Commission

Dorothyia Okerlund	Fair Employment Decision
Complainant
The Berquist Company
Respondent	Dated and Mailed:
ERD Case No.201501462	July 13, 2017
EEOC Case No.26G201500972C	okerlundadOrder_rsd.doc:135

An administrative law judge (ALJ) for the Equal Rights Division (ERD) of the Department of Workforce Development (department) issued a decision on January 23, 2017. The complainant filed a timely petition for commission review. Due to a computer problem, the digital recording of the hearing held on October 13, 2016, was lost.

ORDER

The January 23, 2017, decision by the ALJ is set aside and the matter is remanded to the Equal Rights Division for a new probable cause hearing.

By the Commission:
	/s/
	Laurie R. McCallum, Chairperson
	/s/
	David B. Falstad, Commissioner

Memorandum Opinion

A probable cause hearing was held on October 13, 2016 before the administrative law judge (ALJ).  The complainant appeared without counsel and the respondent appeared by its Human Resources Manager and its legal counsel.

At the close of the complainant’s case, the respondent made a Motion to Dismiss. The complainant was given an opportunity to respond to the motion. After considering the motion, the ALJ granted the respondent’s Motion to Dismiss.  In her decision, the ALJ dismissed the complainant’s complaint finding that there was no probable cause to believe that the respondent violated the Wisconsin Fair Employment Act (WFEA) by engaging in or permitting sexual harassment, by discriminating against the complainant in terms or conditions of employment because of sexual orientation and by discharging the complainant because she opposed a discriminatory practice.

The complainant timely petitioned the commission for review of the ALJ’s decision. As the record was being prepared for commission review, it was discovered that the digital recording of the October 13, 2016 hearing was lost due to a computer problem.

Wisconsin Stat. § 111.39(4)(b) requires that the “testimony at the hearing shall be recorded or taken down by a reporter appointed by the department.”  Here, the entire hearing was lost and the only matter for review by the commission is the ALJ’s two-page summary recapping the lost hearing.

In Clarke v. Plast-O-Con Inc., ERD Case No. 199703063, EEOC Case No. 26G971763 (LIRC Sept. 28, 1999), the tape recorder was broken at the hearing and the complainant’s testimony was not written down or recorded. A synopsis was prepared largely from the ALJ’s handwritten notes.  Citing Krenz v. Lauer’s Food Market, ERD Case No. 8802475, EEOC 26G890652 (LIRC Sept. 27, 1990) and Saccomandi v. E. Pocus and Co., et. al., FHD Case No. 9051655, HUD Case No. 05-90-1092-1 (LIRC Sept. 9, 1993), the commission held that “when there are specific reasons to believe the commission’s review could be compromised by missing testimony,” the commission has remanded for a new hearing. The commission in Clarke remanded for a new hearing in the matter. In Krenz and Saccomandi,  the hearing was only partially recorded and still resulted in a remand for a new hearing.

In Krenz, supra, the commission held that an adequate review by the commission under the statute and with due process requires a decision and review based on a recording of the hearing, unless the parties stipulate to cure the defect. The parties have not stipulated here.

Even if there was agreement between the parties, the ALJ’s summary is insufficient to complete a full and fair review of this matter by the commission. Wisconsin Stat. § 111.39(4)(b) and due process requires the commission set aside the ALJ’s decision and order a remand for a new probable cause hearing.

cc: Attorney Michael Moberg