Wis.LIRC ER Decision: Fauteck - November 9, 2000 - Retaliation - discrimination because of opposition to discrimination or filing complaint - employer must be aware of opposition; Procedure - Evidence - Relevance, scope of; Offers of Proof, procedures for; Procedure - Discovery - Motion To Shorten Time To Respond

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

PATRICIA FAUTECK, Complainant

SINAI SAMARITAN MEDICAL CENTER, Respondent A

BIRDIE ALLEN, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case Nos. 199703785 199801157, EEOC Case Nos. 26G972057 26G981032

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 conclusions in that decision as its own, except that it makes the following modifications:

Add the following to the ORDER:

The ruling that Complainant was required to pay costs, including attorneys fees, in connection with her Request for Production of Documents, is set aside. Respondent shall return to Complainant the $400 which Complainant paid to Respondent pursuant to that ruling.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed November 9, 2000
fauteck.rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Introduction - This case arises out of two complaints alleging retaliation.

The first complaint (ERD Case No. 199703785), filed September 22, 1997, alleged that the Respondents Sinai Samaritan Medical Center and Birdie Allen, an employee of Sinai Samaritan Medical Center, had discriminated against Complainant Patricia Fauteck in retaliation for her having assisted in a complaint (of sexual harassment) which had earlier been filed by another employee. Fauteck's complaint made 3 specific allegations of retaliatory actions by Respondents: that on August 27, 1997 Birdie Allen (Fauteck's supervisor) refused to approve Fauteck's request for a tuition reimbursement for a course Fauteck had taken or wanted to take; that on some subsequent date (unstated, but obviously no later than September 19, 1997, the date on which the complaint was signed), Fauteck resubmitted her application for the tuition reimbursement, with more supporting information, but Allen again refused to approve it; and that on September 17, 1997, Allen contacted Dr. Robert Coye, a team leader in the Asthma Program, and said that she wanted to have Fauteck taken out of her position as Outpatient Asthma Educator and to have someone else put in that position, and that when Dr. Coye said he did not agree with that, Allen then asked him if he would hire Fauteck himself.

The second complaint (ERD Case No. 199801157), filed March 30, 1998, grew out of the fact that Fauteck voluntarily quit her job, giving 4 weeks' notice, in March, 1998. The specific allegation of Fauteck's second complaint was that Birdie Allen retaliated against Fauteck because of Fauteck's filing of her first complaint (ERD Case No. 199703785), by insisting that Fauteck end her employment immediately when Fauteck submitted her resignation, not allowing her to work the last 4 weeks Fauteck had sought in her resignation letter. (1 )

Initial Determinations were issued on both of these complaints on December 21, 1998, finding probable cause. The matters were certified to hearing and hearing was held on May 5, June 14 and November 30, 1999. The ALJ issued his decision, finding no violation of the Act, on April 12, 2000. Fauteck has petitioned for review.

As is discussed at more length below, Fauteck's appeal is based on an argument that the ALJ erred in excluding certain evidence from the record and that the matter should therefore be remanded for further proceedings. She does not actually argue that the ALJ's decision that there was no retaliation was an incorrect one given the evidence which was received. Notwithstanding that she has not made this argument, the commission has reviewed the record to determine whether the decision is correct, and based on its review, the commission is satisfied that the evidence which is in the record supports the decisions made by the ALJ.

The first complaint - Fauteck's first complaint (ERD Case No. 199703785), signed on September 19, 1997 and filed on September 22, 1997, alleged that three things done by Fauteck's supervisor Birdie Allen had been unlawful retaliation against Fauteck for her protected conduct in connection with the sexual harassment complaint of another employee. However, the ALJ found as a matter of fact that prior to September 22, 1997, Allen did not know of any of the protected activities that Fauteck engaged in. If that was true, then that in itself required that the complaint be dismissed, since Allen cannot have been engaging in the actions complained of out a desire to retaliate against Fauteck for protected conduct by Fauteck which Allen was not aware of.

The question of whether an employer's agent, such as a supervisor like Birdie Allen, actually had knowledge of the fact that an employee had engaged in protected behavior, goes to the subjective state of mind of that supervisor. As with all questions concerning the subjective state of mind of a person, the decision about what they knew ultimately requires an inference. The inference is drawn based on facts in the record such as what the person said, what the person was told by others and what they must have observed, etc. Even though an inference is involved, however, it must not be lost sight of that the question is still ultimately one of fact, and that it involves a factual issue about what the person actually believed to be the case.

At various points, Fauteck has argued that knowledge of her protected activities ("opposition" and assisting in another's complaint) should be "imputed" to Birdie Allen. It is not entirely clear what the intent of this argument was. Fauteck may simply have been arguing that the evidence in the record should lead to an inference that Allen in fact knew of the protected activities that Fauteck engaged in. That is a legally viable argument; whether it prevails depends on whether the trier of fact finds the evidence supporting the inference to be sufficiently persuasive. On the other hand, it is possible that Fauteck was urging that Birdie Allen should as a matter of law be treated as if she believed that Fauteck had engaged in protected activities, even if as a matter of fact Allen did not actually have any such belief. Such an argument -- which relies on the employer possessing constructive knowledge rather than actual knowledge -- is not legally viable. Retaliation is conduct which the statute condemns solely because of the motivation which underlies it. In order to violate the prohibition against retaliation, an action or decision must have been made because of an actual, subjective belief that the person retaliated against was raising some kind of claim that discrimination was occurring, or was otherwise engaging in protected activity. See, Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).

In evaluating the first complaint, the ALJ properly applied the test of whether Birdie Allen in fact knew of the protected conduct by Fauteck. He found that she did not. The commission believes that the evidence supporting the ALJ's factual inference as to Birdie Allen's lack of subjective knowledge of Fauteck's protected conduct any earlier than September 22, 1997 at the earliest, is persuasive. There is simply no direct evidence of any communication which would have made Allen aware of Fauteck's role in the sexual harassment complaint. In addition, the commission also recognizes that the ALJ's finding that Birdie Allen was not aware of Fauteck's protected conduct prior to September 22, 1997, reflects an assessment by the ALJ as to the credibility of Allen as a witness. The ALJ was obviously of the opinion that she was testifying truthfully in respect to her lack of knowledge of Fauteck having had any role in the sexual harassment complaint of Joy DeSchane. See, T. 381-82, 421-22, 426, 435-36. The commission finds no reason in the record to disagree with this assessment of credibility.

For the foregoing reasons, the commission concludes that on this record, the ALJ correctly decided that Fauteck's first complaint should be dismissed.

The second complaint -- Fauteck's second complaint (ERD Case No. 199801157) alleged that Birdie Allen retaliated against her by accelerating the effective date of Fauteck's resignation, which Fauteck had tendered in writing on March 23, 1998 with an indication that she was providing 4 weeks' notice and that her last day of work would therefore be April 17, 1998. With respect to this allegation, there is no question but that at the time she made the decision to accept Fauteck's application effective immediately, Allen was aware that Fauteck had filed her earlier complaint of discrimination. However, the ALJ found that Allen's decision to accept Fauteck's resignation effective immediately was not motivated by the fact that Fauteck had filed her earlier complaint, but by the fact that there was a limited amount of work for respiratory therapists at this time and Allen felt that it would be preferable to have the limited amount of such work which was available be performed by persons whose employment would be continuing.

The commission believes that the evidence in the record supports the ALJ's finding on this point. The evidence that there was a low patient census at this point which was having the result of reducing the need for services of respiratory therapists, was persuasive. It was reasonable for Allen to decide that it was better to allow respiratory therapists whose employment was continuing to work instead of having to rotate time off as they had been doing. The ALJ evidently found credible the testimony of Allen with respect to her motives in this action, as well as with respect to the matter of the placement of ads for respiratory therapists in April, 1998, and the commission sees no reason in the record to disagree with that assessment.

For the foregoing reasons, the commission concludes that on this record, the ALJ correctly decided that Fauteck's second complaint should be dismissed.

Fauteck's arguments concerning evidentiary rulings by the ALJ - As noted above, Fauteck's petition for review and her arguments in support of that petition are limited in their focus. She argues only that there were errors by the ALJ in regard to the receipt or exclusion of certain evidence which require that the matter should be remanded for further proceedings.

Fauteck actually raises 4 distinct claims of error by the ALJ in respect to excluding or admitting evidence:

1) His refusal to accept Comp. Exhibits 13 and 20, letters which related to the fact that Birdie Allen had at one point considered removing Fauteck from her position in the Asthma program. (T., pp. 142-44, 149-52).

2) His ruling that Fauteck could not testify about Birdie Allen having at one point considered removing Fauteck from her position in the Asthma program; in this assignment of error, Fauteck cites to pp. 203-206 of the June transcript.

3) His later ruling allowing the Respondent to present evidence which went to the topic of Allen having considered removing Fauteck from the Asthma Program. See, T. pp. 406-413.

4) His rulings on "several" occasions (only one, at T. p. 98, is specifically cited) preventing Fauteck from making a proper offer of proof on the record regarding the exclusion of evidence.

The first three of these points are interrelated. To explain this, it is necessary to review in some detail the history of the arguments and rulings made at hearing about what was at issue.

Exclusion or admission of evidence -- During the first 2 days of hearing (May 5, 1999 and June 14, 1999), the ALJ repeatedly insisted that there were only two issues raised by the complaints: the denial of a tuition reimbursement benefit, and the refusal to allow Fauteck to continue working after she gave 4 weeks' notice of her quitting. He repeatedly rejected as irrelevant anything connected with the matter of Birdie Allen having attempted to get Fauteck removed from the Asthma Program. See, e.g., T. p. 36, 43, 65, 92, 107, T. pp. 143-44, 149, 158-59. That was apparently the rationale for his refusal to accept Complainant's Exhibits 13 and 20, as well as for his challenged ruling(s) at pp. 203-206 of the transcript (on the second day of hearing, on June 14, 1999). However, on the third day of hearing, held months later (on November 30, 1999), the ALJ had apparently changed his view, and he made a number of statements indicating his recognition that there were three issues, which included the matter of Birdie Allen's attempt to have Fauteck removed from the Asthma Program. See, T. p. 375. The ALJ allowed Respondent's counsel to conduct examination of Allen on this issue, T. pp. 401 et seq.

At this last point - actually, when Respondent offered as an exhibit a copy of the same document that Fauteck had offered on an earlier day of hearing and that had been related to the issue - Fauteck pointed out to the ALJ that he had denied her the opportunity to go into that area but was now allowing Respondent to do so. The following exchange took place: (2 )

MR. DE LA MORA: When we attempted to develop that as another example of the circumstantial behavior of hostility toward my client, you went back to the complaint, and you said I don't see it within the four corners of the complaint; I'm not going to allow you to get into that. I will allow you to put in an offer of proof. Now the shoe is on the other foot, they're proposing to develop that whole area. I'm saying all we want is that they be treated the same way as we were treated from an evidentiary standpoint.

JUDGE SCHACHT: Well, I don't - I wanted to try to check, when I go back, look at things, I am simply looking at dealing with a ruling or conversation we had regarding pages 35, 36 and 37 which is the only place that the word accountability shows up in the transcript reference. And it was in keeping with some questions regarding the forms used for evaluations and that if - I understood there have been - I tried to articulate clearly the basis for my rulings, what I understand the hearing was about. And there apparently has been a variety of misunderstandings on that point or difficulty in communication, Mr. De la Mora, but I'm going to overrule the objection regarding - but also to indicate as well that if you - as far as your case in chief, that if you want to call your client back in order to testify simply regarding things regarding this circumstance, I did not understand - I mean, to the extent to which if - in the conversation that I read it was talking principally regarding the forms used for prior evaluations, which I certainly in that regard didn't understand the issues to be that this was relating to whether or not the alleged discriminatory - nondiscriminatory reason for the Respondent imposing these was pretext for discrimination or not. I certainly didn't understand it in this light, if that was your intention. So if you wish to - in that matter to call back your client as part of your case to talk about this question, I will allow you to do so. And that if you have - just saying I did not intend to in the manner to deny the chance to present evidence regarding whether this - one of the things, basis for this as well is if this was something you're claiming to be - this should have been an exhibit that you would have presented to show - claim that that was presented for some other reason . . . (T. pp. 407-09)

The ALJ thus effectively reversed his earlier rulings and indicated that Fauteck could offer what he had excluded before:

JUDGE SCHACHT: Well, let's just deal with the thing. If there is some - okay. If there is something that in addition - question whether there is, I will entertain if there is something additional from your client to deal with what you thought that I excluded at that time, then I'll entertain things when - you can call her back before you rest to deal with that question.

MR. DE LA MORA: Okay.

JUDGE SCHACHT: Then also give Ms. Ninneman a chance to show that you already asked those questions. So I'm more interested in dealing with technical things about let's get the right scope of the testimony in here rather than talking about whatever happened in the past. So go ahead. (T. pp. 410-11)

At that point, however, Fauteck's counsel pointed out that the effect of the ALJ's previous rulings excluding evidence Fauteck sought to offer could not be so easily corrected:

MR. DE LA MORA: Could I comment, because you proposed a cure for what you believe to be the problem. And in reality it is not a fair cure for this reason. Early on in these proceedings we attempted to introduce testimony which involved Dr. Coye about this whole business with the Asthma Program. Fundamentally - while it may not be specifically referenced in pages 34, 35 or 36 as you have pointed out - fundamentally your position as I understood it was that notwithstanding anything that may have happened in the context of the Asthma Program or the attempted removing of my client from the Asthma Program because it was not delineated within the scope of the complaint, it was really out of bounds, so to speak. Now, if I understand what you're saying is you're saying, well, perhaps we can go into that. But in reality that is not a fair solution for my client because Dr. Coye is no longer in this country. He left some months ago. He finished his term of service here. He was here for training. And he's not available. And we're at a disadvantage because the objection is going to be hearsay, hearsay what she's relating to Dr. Coye told her he discussed with Ms. Allen. It's a question of fundamental fairness. (T. pp. 411-12)

Indeed, Fauteck had Dr. Coye present and available to testify at the hearing held on June 14, 1999, but the ALJ had made it clear at that time that, because of his ruling that the matter of Birdie Allen having attempted to remove Fauteck from the Asthma Program was not relevant, he would not allow any testimony on that.

To Fauteck's objection quoted above, the ALJ made the following response:

JUDGE SCHACHT: Well, I will just tell you this. I'm not going to say anything further than this at this point. Just to say that I make the rulings as best I can understand regarding what relates to the hearing, and that if there is a circumstance in which I didn't understand one of my - I certainly try to find - even if that part of what a person is asking to admit of for the purposes they're doing, I try to understand and find any part of it that's usable for whatever admissible purpose is involved. And if I missed something which would be admissible in the argument, well, I - you can present that. I just would tell you that I don't believe that I didn't understand - if there was something of that type excluded, I didn't understand what you wanted it for. And I believe, however, when the matter that - repeatedly that when you state what I just said, it comes back unrecognizable. So I did not say as far as the purpose of that you only can refer to things in the complaint. I'm saying the only things I can find discrimination on are the things in the complaint, have to do with something in the complaint. I'm sure that I've said that repeatedly because it's the standard position that I take. So if there is something in his testimony or at some time there is that your position wasn't clear about, well, I'm - then you'll have to go and at some point - I made the rulings as best I could at that point. If you show that a particular ruling or situation was - you had a problem with, then something they can deal with. I'll take a look at it. But I only can in this business call them as I see them at the time. One of the reasons we have an appeal process is because we know we're not perfect. So go ahead with the next question. (T. pp. 412-13)

The commission concludes, there is some merit to Fauteck's objection that the ALJ erred in excluding certain evidence on grounds of relevance when in fact that evidence should have been admitted. Clearly, as the ALJ belatedly recognized on the third day of hearing, the evidence concerning Allen's attempt to have Fauteck removed from the Asthma Program was relevant to Fauteck's allegation that Allen made this attempt in retaliation for her conduct in opposition to perceived discrimination.

The commission also concludes that there is some merit to the complaint made by Fauteck that the "whole tenor and flavor" of the proceedings was problematic. The commission believes that the general approach taken by the ALJ to the question of relevance of testimony was excessively restrictive.

Admissibility of evidence in hearings under the WFEA depends on statutory and code provisions. Wis. Admin. Code Ch. DWD 218.18 (1) provides that "[h]earings shall be conducted in conformity with the act and the provisions of ch. 227, Stats." The WFEA is silent on the issue of what evidence is admissible, but Wis. Stat. � 227.45 (1) provides in relevant part that:

[A]n agency or hearing examiner shall not be bound by common law or statutory rules of evidence. The agency or hearing examiner shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony...

Section 904.01 of the Statutes defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" (emphasis added).

Evidence is relevant when it is persuasive or indicative that a fact in controversy did or did not exist because the conclusion in question may be logically inferred from the evidence. The criterion of relevancy is whether or not the evidence adduced tends to cast any light upon the subject of the inquiry . . . Any evidence that assists in getting at the truth of the issue is relevant; in other words, any fact which tends to prove a material issue is relevant, even though it is only a link in the chain of facts which must be proved to make the proposition at issue appear more or less probable. As a starting point, all facts affording a reasonable inference as to either innocence or guilt are relevant and admissible. To be relevant, it is not necessary that the evidence be conclusive as to guilt or innocence; and it is sufficient that it tend to convince that the fact sought to be established is so. Relevancy is not determined by resemblance to, but by the connection with, other facts.

Zebrowski v. State , 50 Wis. 2d 715, 724, 725, 185 N. W. 2d 545 (1971) (quoting w. approval 1 Wharton's Anderson, Crim. Evidence (12th ed.), pp. 284-287, s. 148).

One reason for excluding evidence which is not relevant to the issues(s) to be decided, is that it may confuse the decision-maker or even lead them to a wrong result. However, the risk that irrelevant evidence will have an improper effect on the decision-maker is not particularly significant in an administrative hearing such as those held on complaints under the WFEA (3 ) Administrative law judges, who are attorneys experienced in resolution of the evidentiary and other legal issues presented in cases of this nature, are presumably able to disregard evidence which is irrelevant or otherwise improper when the time comes for them to make a decision on the merits of the case.

Thus, the only really significant reason for excluding evidence on relevancy grounds in administrative hearings of this type, is to avoid unnecessary lengthening of the hearing. That is an important reason, but its importance must be weighed against its attendant risks. One of those risks, is that an overly stringent approach to questions of relevance can be directly counter-productive to the goal of expediting the hearing. This case exemplifies that problem. Page after page of the transcript is consumed by extensive argument, and equally if not more extensive rulings, on relevance objections. Over 40 separate relevance objections were interposed during the hearing, and the argument and rulings on these objections (as well as on disputes over relevance connected with discovery and with the ALJ's procedures for offers of proof regarding evidence excluded on relevance grounds) accounted for something approaching 100 pages of transcript. It is difficult to avoid the conclusion, that the hearing would have taken significantly less time, if the ALJ had taken a different approach to these questions of relevance.

Another problem, which is peculiar to hearings of the type concerned here in which the commission acts with the authority of a de novo decision-maker, is the denial to the commission of the evidence in question which it might find relevant and wish to consider. This problem can be compensated for by following the proper procedure to allow parties to submit offers of proof as to evidence which the ALJ concludes is inadmissible - but as is discussed below, those proper procedures were not followed here.

Offer of proof issue -- The practice of making offers of proof is followed in court because of the fact that it is expressly provided for in Wis. Stat. � 901.03 (1)(b), that a claim of error may not be predicated on a ruling which excludes evidence unless the substance of the evidence is made known to the judge by offer of proof or was apparent from the context within which questions were asked. This provision is part of the Rules of Evidence and, as such, it is not strictly applicable to hearings under the WFEA. See, Wis. Stat. � 227.45 (1). However, it can be of great utility to the commission, in carrying out its statutory review responsibilities, if there has been an offer of proof made when an ALJ elects to exclude evidence. The commission has on occasion looked to the content of offers of proof in order to analyze issues presented in cases before it. See, e.g., Schneider and Larsen v. Stoughton Trailers (LIRC, 2/24/95).

The ALJ in this case insisted on a procedure whereby, when he ruled that certain evidence which a party wished to offer was inadmissible, if the party wished to submit an offer of proof as to what the evidence would have been, the party was required to do so by submitting it in writing after the hearing. (4 )

As Fauteck points out in her brief, the generally-accepted practice for making offers of proof is that counsel should be allowed to either make them in question-and-answer form (by asking the witness the questions and getting the answers), or by describing in summary form, also on the record, what the testimony would be. See, State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 39, 194 N.W.2d 613 (1972).

Allowing submission of an offer of proof in the form of questions and answers to the witness is probably preferable, in most cases, in that it provides the most accurate reflection of what the testimony would be. Alternatively, where counsel can succinctly summarize what they contend a witness would testify to and this will take less time than going through the questioning, this procedure may be better. Whichever procedure is followed, though, an offer of proof should be placed on the record at the time the ruling excluding the evidence is made and there is a request to make an offer of proof. A reason for this, as pointed out in State ex rel. Schlehlein v. Duris, is that it gives the trial judge a more adequate basis for a ruling. Of course it is true, that the need for an offer of proof will not arise until there is an objection and a ruling that certain testimony will not be allowed, but there is no reason that the trial judge cannot consider the substance of the testimony as it is more fully developed by the offer of proof and then restate the ruling in light of that. When the substance of offered testimony has been ruled irrelevant before it is fully developed on the record, and the judge then declines to even hear an offer of proof as to the substance of that testimony, an unfortunate appearance of arbitrariness can be created. (5 )

Concerns may arise that allowing an offer of proof to be placed on the record in the hearing may cause the opposing party to wish to engage in cross examination as to that testimony (if it has been submitted in question-and-answer format) or even to introduce evidence which they might not otherwise have offered in order to rebut the testimony given in the offer of proof, with the result that the hearing will be unnecessarily lengthened. This should not occur, however, because neither cross-examination nor responsive counter-evidence should be allowed to an offer of proof. This will not deprive the opposing party of the opportunity to be heard. If on appeal, a decision is made that certain testimony should not have been excluded and that it was sufficiently material that it could have resulted in a different outcome, the proper course will be a remand for further hearing so that the excluded testimony can be placed of record. At that time, the opposing party will have their opportunity to counter the evidence.

Did the ALJ's erroneous rulings affect the outcome of the case? -- For the foregoing reasons, the commission concludes that there is some merit to Fauteck's objection that the ALJ erred in rulings as to the admissibility of certain evidence and in the procedure he followed with respect to offers of proof. However, analyzing the significance of Fauteck's assignments of error regarding these rulings, requires considering exactly what the effect of the rulings was in each case. It turns out, that although they were accompanied by some rather sweeping pronouncements by the ALJ, the actual rulings made in each case had a very limited effect on the question of what evidence went into the record.

As to the first of the challenged rulings concerning the exclusion of evidence, it is clear what was excluded; the exhibits in question are in the file.

As to the second assignment of error involving exclusion of evidence, it is less clear what the effect of the ruling was. While there was quite a lengthy colloquy at that point, there was actually a very limited ruling. The ruling arose because of an objection raised in the middle of Fauteck's answer to a question, and the eventual ruling was to sustain that objection; this means, of course, that the particular answer went unfinished. Fauteck's counsel did not offer an assertion at hearing as to what Fauteck would have been able to testify to if she had been allowed to complete her answer; he has also not offered such an assertion in his briefs to the commission.

As to the third assignment of error involving exclusion of evidence, it is again the case that while there was quite a lengthy colloquy at that point, there was actually a very limited ruling, if there was a ruling at all. The actual "ruling" was simply one which overruled Fauteck's relevance objection to an exhibit offered by Respondent, a memo to Fauteck from Birdie Allen. See, T. p. 408, line 15. A discussion followed in which Fauteck's counsel complained that Fauteck was handicapped in acting on the ALJ's newly-granted permission to prevent evidence on the issue he had previously restricted evidence on, because Dr. Coye, a witness who could present evidence on the issue and who had been available at the time of the previous day of hearing in June, was at that time (November) no longer in the country. After this, though, the Exhibit which precipitated the exchange, Respondent's Exhibit 8, was withdrawn after counsel for Respondent noted that it was the same document as Complainant's Exhibit 14, which had been received during the June hearing. See, Jun. T. 145. Thus, the only thing which can be identified as a ruling here (admitting Respondent's Ex. 8) was mooted by the withdrawal of the exhibit in question.

As to the fourth assignment of error, relating to the procedure to be followed for an offer of proof, it began with a foundation objection to a question posed to Sharon Bardele as to whether her supervisor, Linda Cyski, had a management position parallel or similar to Birdie Allen. See, T. 97. Unfortunately, none of the argument or comments which followed seemed to have anything to do with the question of whether there was an adequate foundation to allow that witness to answer that question. Instead, the exchange drifted into the (by-then-familiar) territory of relevance and its limits, with the ALJ repeating his (then-held) view that "we are dealing with two small incidences". T. 98. The problem arose when counsel for Fauteck asked to have the witness excused so that he could make an offer of proof, and the ALJ refused to allow this, instead directing him to submit his offer of proof in writing, after the hearing.

Deciding whether the errors by the ALJ which were involved in the rulings made above should result in an order to send this matter back for further hearing, requires an evaluation of whether the evidence which Fauteck claims could have been offered would make any difference in the outcome.

What is the evidence that Fauteck claims could have been offered but for the ALJ's rulings? The rejected Exhibits 13 and 20 concerned Birdie Allen's attempt to have Fauteck removed from her position in the Asthma program. The other evidence exclusion issues raised by Fauteck concerned proposed testimonial evidence which the ALJ would not allow her to offer (or would allow the Respondent to offer) - but this too apparently concerned Birdie Allen having attempted to have Fauteck removed from her position in the Asthma program. Notably, Fauteck has not described any proposed but excluded evidence which would have gone to the heart of the reason for the decision on her first complaint, which was that there was no proof that Birdie Allen knew that Fauteck had engaged in any protected conduct. Even construed most favorably towards Fauteck, the evidence which she claims was erroneously excluded would only tend to support her arguments that Birdie Allen was hostile and unreasonable towards her in regards to the matter of her attempts to have Fauteck removed from the Asthma Program. However, without some evidence that Allen knew of Fauteck's protected conduct, it is simply not possible to support a finding that any such hostility and unreasonableness was motivated by Fauteck's protected conduct. Therefore, the ALJ's exclusion of the evidence, while regrettable, simply can not be considered prejudicial.

Attorneys Fees Ruling In Discovery Matter - Fauteck has also asserted in her petition for review that the ALJ erred when he ordered that Fauteck pay costs, including attorneys fees, in connection with his ruling on a discovery matter. (6 )

In her Brief in Chief to the commission, Fauteck relied on Tatum v. LIRC, 132 Wis.2d 411, 422-23, 392 N.W. 2d 840 (Ct. App., 1986), which held that the WFEA "does not allow the agency to order any type of relief for a prevailing employer, much less specifically authorize an award of attorney fees". However, Tatum involves the question of whether a prevailing employer may be awarded fees by virtue of having prevailed in the case. That is not what occurred here. Rather, attorneys fees were awarded in connection with a ruling on a discovery matter. The rules of the Equal Rights Division expressly incorporate the provisions of Chapter 804 with respect to discovery, see Wis. Admin. Code. Ch DWD 218.14 (3), and they expressly provide the administrative law judge with the same authority to compel discovery, to issue protective orders and to impose sanctions as is provided for in Chapter 804, see Wis. Admin. Code. Ch DWD 218.14 (4). The commission has previously upheld orders imposing attorneys fee awards against complainants in connection with rulings on discovery motions, see, e.g., McAdoo v. Wm. Beaudoin & Sons (LIRC, April 19, 2000), and it has previously distinguished between awards of attorneys fees to respondents because they have prevailed on a discovery motion, and awards of attorneys fees to respondents because they have prevailed on the merits of a case, see, Smith v. Racine Unified School Dist. (September 30, 1999).

However, in her Reply Brief, Fauteck has raised a different objection to the ALJ's ruling, and the commission has concluded that this objection is well taken. Fauteck asserts that the ALJ's award of costs cannot be justified as the exercise of authority allowed under Wis. Stat. � 804.12 (1)(c) in the case of rulings on Motions to Compel discovery, because there never was a Motion to Compel. She is correct.

Fauteck served a Request for Production of Documents on Respondent on March 30, 1999; the request sought production of the documents Respondent anticipated offering at hearing, written communications between Birdie Allen and Dwight Morgan (or others) regarding changes in Fauteck's employment, and documents regarding payment to Fauteck for the weeks covered by her resignation notice that she ended up not working. Fauteck served another Request for Production of Documents on Respondent on April 20, 1999; that request sought production of all personnel records of Birdie Allen.

On April 22, 1999, Fauteck wrote to the ALJ and moved for an order shortening the time within which responses were due to these Requests for Production. This type of order is allowed by Wis. Stat. � 804.09 (2), which provides (with respect to requests for the production of documents) that "[t]he court may allow a shorter or longer time" than the statutorily-defined timelines. On April 23, 1999, Respondent wrote to the ALJ opposing the entry of an order shortening the time for response to the production requests. In its letter, Respondent argued that it was Fauteck's own fault that she waited so long to file her request for production of Birdie Allen's personnel records that the due date for production of the documents was after the first day of scheduled hearing. Respondent then added, parenthetically,

(Even if Mr. de la Mora's second document request had been timely, respondent would have objected to the request as it seeks documents that are not relevant not calculated to lead to the discovery of relevant evidence in this matter.)

On April 28, 1999, Fauteck wrote to the ALJ requesting him to rule on her Motion to Shorten Time To Produce.

There is nothing further in the file indicating whether there was a response or some other kind of action by the ALJ on this issue prior to May 5, 1999, the first day of hearing. The next reference in the record to the matter, is discussion on the record on May 5 (beginning at p. 34 and continuing through p. 45, with more about it at pp. 51-54), which culminates in the ALJ's ruling.

It is difficult to tell even from this transcribed discussion of this issue, what may have occurred preceding it. However, it does appear, that there had been a telephone conference between counsel for the parties and the ALJ at some point prior to the day of hearing, in which there was discussion of the outstanding request for production of documents and of the fact that given the statutory timeline the documents would not be due until after the May 5 hearing, as well as of the distinct issue that Respondent did not want to produce those documents at all. (7 ) It also appears that on the day of the hearing, there was a period of off-the-record discussion before the start of the hearing at which the request for production of documents was again discussed.

It appears that in these off-the-record discussions, the ALJ became focussed on the question of whether the Respondent should or should not be required to produce the materials sought in the April 20 Request for Production of Documents. As noted, these discussions culminated in the ALJ eventually deciding on the record that Respondent should not be required to produce them. However, he then proceeded as though that topic had been addressed and resolved because there had been a Motion to Compel. See, T. 40: "My understanding is we're dealing with a motion - essentially that the complainant has made a motion under 804.12 to compel discovery." The ALJ's "understanding", however, was simply incorrect: there had not been a Motion to Compel made on the record. The most which appears in the record, is a suggestion raised by Respondent in a letter that it would have opposed having to comply with the Request for Production even if it had been served early enough to require it to be complied with before the hearing. However, as far as can be determined from the record, this was never reduced to a formal Motion for a Protective Order, so the ALJ's ruling awarding costs also cannot be premised on the theory that there was a ruling on that type of motion. (8 )

The provisions of Wis. Stat. � 804.12 (1)(c), "Award of expenses of motion", do not by their terms apply to motions to shorten or lengthen time to respond to discovery requests. Furthermore, there is nothing anywhere else in the discovery code which states or suggests that if a party makes a motion for the court to shorten or lengthen the time within which a request for production may be responded to, the provisions of � 804.12 (1)(c) would apply. That is significant because there are a number of other places in the discovery code where other types of motions are mentioned and it is expressly stated, "Section 804.12 (1)(c) applies to the award of expenses incurred in relation to the motion". See, e.g., � � 804.01 (3)(b), 804.05 (5), 804.11 (1)(c). It is therefore not necessary to address the question of whether arguments in favor of requiring production of the documents in question could be found "substantially justified". Whether they were or not, the ALJ had no authority to make an award of expenses, because there had been no motion to compel.

For the foregoing reasons, the commission has modified the ALJ's Order to set aside the ruling concerning attorneys fees and to direct that the amounts involved be repaid to Fauteck by Respondent.

cc:
Attorney Hector de la Mora
Attorney Mary Pat Ninneman

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Footnotes:

(1)( Back ) As the ALJ notes in his decision, over a year after she filed this complaint, Fauteck sought permission to amend it, to add an allegation that her resignation itself had been a constructive discharge in violation of the Fair Employment Act. The Respondents objected that the amendment would be untimely. That objection was clearly meritorious; at that point (in April, 1999), it had been well over 300 days since Fauteck's resignation in March, 1998. The allegation that her resignation was a discriminatory constructive discharge could not be said to "relate back" to her allegation that there had been an act of unlawful retaliation when her resignation was "accelerated" by four weeks; the amendment really sought to add an entirely new alleged wrong. In view of the fact that it would be untimely and that the Respondents had asserted the defense of timeliness, the ALJ denied Fauteck's request to be allowed to amend her complaint. Fauteck has not raised any allegation in her petition for review or in her briefs to the commission, that the ALJ erred in denying permission for this amendment. For that reason, the commission considers that argument to have been abandoned, and it does not address it further.

(2)( Back ) Here, and in the following pages, the commission has thought it preferable to simply reproduce the comments of the ALJ on these issues as to the admissibility of evidence, rather than attempting to summarize them.

(3)( Back ) Concerns about the erroneous admission of evidence are less important in trials to a court than in trials to a jury. "Even assuming the trial court improperly received this evidence, since the case was tried to the court without a jury, the error was harmless. This court has frequently said that in such situations, the admission of improper evidence is to be regarded as harmless unless it clearly appears that but for that evidence the finding would probably have been different . . . What might be viewed as a prejudicial error in the receipt of evidence in a jury trial, is reviewed less critically on the question of its prejudicial effect when the trial is to the court." Boyles v. State, 60 Wis. 2d 767, 767-688, 211 N.W.2d 512 (1973). In addition, there is arguably even less reason for concern about erroneous admission of evidence in the case of a decision of an ALJ which is then subject to review by LIRC, than in the case of a decision of a circuit court acting as a decision-maker which is then appealed to the court of appeals, precisely because the commission has the authority of a de novo decision-maker.

(4)( Back ) See, e.g., T. 49-50, 98- 99, 378.

(5)( Back ) State ex rel. Schlehlein v. Duris notes that a judge should not allow an offer of proof as to matters that are clearly immaterial or irrelevant. However, one of the reasons for offers of proof, is that judges may err - and if they err by deciding that something is irrelevant when in fact it is not, and on that basis they refuse to allow an offer of proof, the purpose of the offer-of-proof procedure will defeated. For this reason, administrative law judges should probably attempt to err on the side of allowing rather than rejecting offers of proof as to evidence which the administrative law judge feels is not relevant. As has sometimes been observed, in a trial to a court (as opposed to a jury), it is very hard for the court to err by admitting evidence, and much easier for it to err by excluding it. See note 3, supra.

(6)( Back ) The objection to this ruling is timely. Interlocutory rulings are not appealable at the time they are made. See, e.g., Callaway v. Madison Metro. School District (LIRC, 01/13/93); see also, Wis. Admin. Code. Ch DWD 218.21 (1). A party must necessarily wait until a final decision is issued in the case and it becomes appealable to LIRC, to raise any claim that the ALJ erred in such an interlocutory ruling.

(7)( Back ) At p. 39 of the transcript, after Fauteck's attorney reminds the ALJ that he had filed a Motion to Shorten Time to Produce, the ALJ said:

[ALJ: ]"I've already indicated I'm dealing with the stated - the things less than 30 days from it, I made the ruling that respondent was to bring it and we would deal with it today simply because I wanted to have on record of what happened with it. - I don't view that that's -- Then I will give respondent a standing objection to having to even produce - have it available today. I assume that - you objected to it on the phone, and I assume that you have one today. Is that a fair statement? [MS. NINNEMAN: ] Yes."

(8)( Back ) It is conceivable, that in some off-the-record discussion, counsel for Respondent made an oral motion for a protective order or counsel for Complainant made an oral motion for an order to compel. However, whether this occurred must be treated as irrelevant. The commission can only operate on the basis of what it knows to have occurred, and its knowledge of what has occurred must be based on the record. If a motion is not made in writing and incorporated into the record, or noted on the record at hearing, then in legal contemplation no motion has been made.