Wis.LIRC ER Decision: Scott - December 19, 1990 - Procedure - Witness and Exhibit List (DWD 218.17, formerly 218.14 - Exchange of names of witnesses and copies of exhibits) - exhibit properly excluded where opposing party would be unfairly surprised

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

CANDI SCOTT, Complainant

SNO BIRD TRAILER COMPANY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8802744, EEOC Case No. 26G890239

An Administrative Law Judge for the Equal Fights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on May 24, 1990. Respondent filed a timely petition for review by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the Administration Law Judge is modified as follows:

Paragraph 5 of the Order is deleted and the following paragraph substituted therefor:

"5. Within 30 days of the expiration of time within which an appeal may be taken herein, Respondent shall file with the Commission a compliance report detailing the actions it has taken to achieve compliance with this Order, including all computations used to arrive at a determination of the amount of back pay to be tendered, as well as a copy of the neutral letter of reference which is required to be given to Complainant as a result of this Order. Such compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708.

As modified, the decision of the Administrative Law Judge (copy attached) shall stand as the FINAL ORDER herein.

Dated and mailed December 19, 1990.

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

In its petition for Commission review, the Respondent argues that the Administrative Law Judge committed an abuse of discretion in prohibiting the Respondent from calling more than one witness at the time of hearing, and from prohibiting Respondent from entering into evidence a copy of a letter from Respondent to the investigator. Based on a careful review of the record, including the tapes of the hearing, the Commission concludes that the Administrative Law Judge appropriately exercised her discretion in these matters.

Wisconsin Administrative Code chapter Ind 88.14(1), applicable to hearings before the Equal Rights Division in cases arising under the Wisconsin Fair Employment Act, provides:

"EXCHANGE OF NAMES OF WITNESSES AND COPIES OF EXHIBITS. By no later than the 10th day prior to the day of hearing, the parties shall file with the division and serve upon the other party a written list of the names of witnesses and copies of the exhibits which the parties intend to use at the hearing. 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 have reasonably anticipated using prior to the hearing."

Respondent had ample, actual notice of this provision. When the Notice of Hearing was issued on October 25, 1989, the copy sent to the Respondent was accompanied by an information sheet describing procedures related to the hearing. The Notice of Hearing prominently alerted the reader to the need to read this information sheet. The first entry on the information sheet reads:

"BY NO LATER THAN 10 DAYS BEFORE THE DATE OF THE HEARING, EACH PARTY MUST SEND THE OTHER PARTY--AND FILE WITH THIS DIVISION--A LIST OF ANY WITNESSES AND COPIES OF ANY DOCUMENTS THEY MAY WANT TO USE AT THE HEARING. ANY WITNESS OR DOCUMENT NOT DISCLOSED COULD BE BARRED AT HEARING."

In addition to this, a copy of the rules themselves was also included with the information sheet.

There can be no doubt that Respondent received these informational materials, reviewed them, and noted the warning concerning disclosure of witnesses and exhibits. On November 10, 1989, the vice president of Respondent, Carl Firehammer, sent a letter to the Equal Rights Division stating:

"This is in response to the letter which I received from the ERD dated October 25, 1989, in which all statements made in the complaint were denied."

This letter then continued by providing "a list of people who will be appearing at the hearing on January 17, 1990."

It is not disputed that, although Respondent sent this letter to the Equal Rights Division, it did not send a copy of it to Complainant or her attorney. At no point after this did Respondent ever send Complainant or her attorney any other indication of what witnesses and exhibits would be offered at hearing. Therefore, Respondent was not in compliance with the rule, since it requires service on opposing parties as well as filing with the Division. Indeed, given that the purpose of the rule is to avoid undue surprise at hearing, providing notice of intended witnesses and exhibits to the other party must be viewed as the most important requirement of the rule. The requirement of service on the Division serves mainly to keep the Division informed as to whether the parties are complying with the exchange requirement.

At the hearing, Carl Firehammer appeared as a representative of the Respondent, and in explanation of Respondent's failure to send a copy of the witness and exhibit list to the Complainant, he stated:

"I did send you the judge a list of that. If it was my ignorance, I did not understand that. It was in good intent to have that list available to whoever wanted it."

The Commission does not accept the implicit contention that Mr. Firehammer's error was an excusable one. He had actual notice of the rule, as evidenced by his faulty attempts to comply with it. The explanatory materials could hardly have provided a clearer indication that it was necessary that the list of witnesses and copies of proposed exhibits be sent to the other party in addition to being filed with the Division.

The Complainant did properly comply with the exchange rule. Furthermore, Complainant convincingly asserted that she would be unreasonably prejudiced by being required to respond to evidence presented by undisclosed witnesses, without the opportunity to prepare beforehand to do so by such methods as deposition, if necessary, or by preparing and insuring the attendance of witnesses on her own behalf who could meet the testimony of the opposing witnesses.

The Administrative Law Judge considered the positions of the parties on the matter, ruled (contrary to the request of Complainant) that Respondent would be allowed to present the testimony of Jack Behymer despite the fact that he had not been timely identified as a potential witness, and ruled further that no other witnesses would be allowed. In so doing, she engaged in a reasoned exercise of the discretion allowed her under Ind 88.14(1), precluding the presentation of witnesses who had not been identified prior to hearing on the grounds that to allow, their presentation would unfairly surprise the opposing party. The Commission sees no basis on which to disagree with this ruling.

As Respondent points out, the Administrative Law Judge also precluded Respondent from introducing into evidence a copy of a letter from Firehammer to the Division's investigator, dated January 16, 1989. It is also true that, in the prehearing designation by Complainant of proposed witnesses and exhibits, notice was given that "all exhibits listed on page 2 of the Initial Determination" would be introduced as exhibits, and that the January 16, 1989 letter in question was identified on page 2 of the Initial Determination as investigator's Exhibit H. Normally, a party will not be heard to object to the other party's offer of a document which the first party has designated as a potential exhibit, since in such a case the objecting party cannot credibly claim that the introduction of the document at hearing would surprise them. In this case, however, an unusual circumstance was present. The letter in question, as noted, was from the Respondent to the investigator. Complainant requested the Equal Rights Division to provide a copy of it (and the other investigation exhibits) to her. It became apparent at the hearing that, when the Equal Rights Division complied with this request, it failed to forward Complainant's attorney the entire contents of the document. Specifically, the document consisted of a letter of three pages accompanied by a number of attachments, most of which were computer printouts reflecting changes in the workforce at Respondent. The Division failed to forward Complainant's attorney copies of the attachments in question, and she therefore was unaware of their contents or even their existence when she indicated that she anticipated offering the document as a potential exhibit. Thus, when Firehammer proposed at the hearing to offer evidence drawn from those attachments relating to the changes in the Respondent's workforce, Complainant's objection that the evidence would unfairly surprise her was a legitimate one. Because, as noted above, the Respondent completely failed to comply with the rule requiring prehearing disclosure of potential exhibits, the Respondent had no right to insist upon admission of the documents into the record. Because Complainant would arguably have been unfairly surprised by the admission of those documents, the Administrative Law Judge properly excluded them.

Respondent also objects, in its petition for Commission review, that the Administrative Law Judge erred in giving "substantial weight" to the fact that the Respondent laid off the Complainant while retaining an employe who had been hired after her, without considering the fact that Respondent, a non-union company, was not bound by any requirements that it lay off employes in reverse order of seniority. The Commission is not persuaded that the Administrative Law Judge gave "substantial weight" to this factor. Rather, it appears that the Respondent's retention of a subsequently hired employe after the layoff of Complainant was simply one of many factors which the Administrative Law Judge considered relevant. The Commission as well sees relevance in the evidence in question. While Respondent may have been free to lay off employes without regard to their length of service, it would not be an unreasonable assumption that an employer might be inclined, when reducing its staff, to wish to retain its experienced employes, who presumably are more productive, over its new hires, who presumably are less productive. The employe had been employed by Respondent as an assembler for several months; the employe retained after Complainant's layoff, had only been hire a few weeks before. The Commission cannot conclude that these facts are irrelevant. It certainly cannot conclude that their consideration, among many other facts, was in any sense prejudicial. A great deal of other evidence, set forth by the Administrative Law Judge in her decision, supported the result arrived at.

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