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

GREGORY P. WELLS, Complainant

ROADWAY EXPRESS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. 199700518 199801274, EEOC Case Nos. 26G970634 26G981085

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.

For the reasons stated in the Memorandum Opinion attached hereto, the commission concludes that this matter must be remanded to the ALJ for clarification of the contents of the record, and for clarification of the ALJ's ruling on Complainant's Motion For Attorney's Fees And Costs For Obtaining Discovery.

The commission therefore makes the following:

ORDER

The May 1, 2000, decision of the Administrative Law Judge is set aside.

This matter is remanded to the Administrative Law Judge. On remand, the ALJ is directed to take the following actions:

1) The ALJ is directed to create a written list of all of the documents in the file of the Equal Rights Division in this matter which were received into the record as exhibits. He is also directed to physically mark all such documents with their exhibit number if they have not already been so marked.

If the ALJ determines that in order for him to comply with this mandate it would be beneficial to seek the positions of the parties on the question of what documents were or were not received as exhibits at the hearing, he may do so in whatever form (i.e., hearing, conference call, written submission) appears to him most efficient. However, the parties are not to re-argue to the ALJ, and the ALJ is not to revisit, any question as to whether any particular exhibits should or should not have been received. This remand contemplates only the clarification of what documents were received when this matter was previously pending before the ALJ.

2) The ALJ is directed to locate the original of the Complainant's Motion To Compel which was filed with the Equal Rights Division on March 9, 1998, if the same is still in the possession of the Equal Rights Division, and to include it in the file, or if it is not still in the possession of the Equal Rights Division, to obtain a copy of that Motion from counsel for Complainant and to include that in the file.

3) Once the mandates described above have been complied with, the ALJ shall reissue his decision. This reissued decision shall include a ruling on Complainant's Motion For Attorney's Fees And Costs For Obtaining Discovery. That ruling shall include an express statement of the reasons for the ALJ's ruling, with reference to the standards described in Wis. Stat. § 804.12 (1)(c). That ruling shall also expressly state when the hearing on the underlying motion to compel was in fact held, and it shall indicate whether (and if so, when) any separate hearing was held on the issue of whether to award attorney's fees and costs in connection with the ruling on that motion to compel.

Because the ALJ's decision has been set aside and he has been directed to re-issue his decision, any party who wishes to have the matter resubmitted to the commission will be required to file a new, timely petition for commission review from the re-issued decision of the ALJ.

Dated and mailed February 27, 2001
wellsgr.rrr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Exhibits - When a petition for commission review is filed from a decision of an administrative law judge of the Equal Rights Division, the commission has the statutory responsibility to make a decision in the case "based on a review of the evidence submitted". Wis. Stat. § 111.39(5)(b). The commission cannot carry out that statutory responsibility unless it can determine what evidence has been submitted. It cannot do so here, and for that reason it must remand this matter.

The documentary record in this case is disorganized and confused. In particular, it is not clear what documents were actually received as exhibits.

The file contains two large ring binders, one marked "Complainant's Exhibits" (containing 94 separate documents) and the other marked "Respondent's Exhibits" (containing 89 separate documents). (1)    None of the documents in these binders are actually marked with exhibit numbers; instead, they are separated by sheets with numbered tabs on them. There are references in the record to Complainant's and Respondent's Exhibits of particular numbers and, from context, they appear to correspond to the numbering in these binders. Thus, it appears that the parties used the numbering that they had given to their proposed exhibits as a de facto marking system for exhibits at hearing.

In addition to the 183 documents in these two binders, the file also contains a number of loose documents which bear exhibit labels, apparently applied by the ALJ during the hearing (others are apparently documents that had been marked as exhibits during depositions). All told, there are 25 documents with exhibit labels on them that mark them as Complainant's Exhibits (with numbering which began with C#95) (2), 21 documents identifiably marked as Respondent's Exhibits (with numbering which began at R#90), and 3 documents marked as Joint Exhibits.

Thus, between the two binders and the other loose documents, the file in this case contains 232 separate documents which it appears either were, or were treated as having been, marked as exhibits. Obviously, in order for the commission to conduct a review of this case "based on...the evidence submitted", see, Wis. Stat. § 111.39 (5)(b), it is necessary to determine which of these documents were received as exhibits.

The file in this matter contains a transcript, each volume of which has an index at the beginning purporting to show exhibits received and the page(s) in the transcript where this is reflected. According to these transcript exhibit indices, there were 67 exhibits received into the record. However, the commission's preliminary review raised some question about the reliability of these exhibit indices. (3) In view of those questions, a more thorough review of the entire transcript was conducted in order to determine definitively what documents were marked and received as exhibits during the hearing.

Unfortunately, in many cases it proved difficult to determine even from the transcript itself what actions were taken on motions for receipt of exhibits.

The principal problem was that, when the parties moved to have documents received as exhibits, the ALJ often failed to clearly state whether he was granting the motion and receiving the documents. Thus, in some cases in which one party moved for the receipt of an exhibit into evidence and the other party indicated that they had no objection, the ALJ would merely say "Okay" or "Thank you" or "All right", instead of expressly stating that the document was (or was not) received. (4) Indeed, the ALJ would sometimes respond in this kind of ambiguous fashion even when the other party had not expressly indicated that they did not object, or when they had expressly indicated that they did object. (5) Sometimes when a party objected to the other party's motion for receipt of an exhibit, the ALJ would say "overruled" or "sustained", evidently addressing himself to the objection rather than to the motion for receipt, and he would never make any other express statement that the document was or was not received. (6) As to one group of exhibits which were moved into the record and objected to, the ALJ seemed to agree with a party's suggestion that he "take the matter under advisement", but he then never issued a ruling. (7) Sometimes, after a party moved for the admission of a document and the other party did not pose an objection, the ALJ would simply say nothing at all. (8)

Another reason that the record is confused, is the fact that the ALJ and the parties did not always fully identify exhibits they were talking about by reference to whether they were Complainant's Exhibits or Respondent's Exhibits, something which was important since both sets were numbered. (9)

If the commission looked not only to express statements in the record to determine that documents were received, but also relied on inferences from ambiguous statements and actions, its review would lead it to believe that 87 documents (rather than the 67 indicated by the transcript exhibit indices) had been received as exhibits in this matter. They are listed here with the Transcript volume and page number at which they were, or can be inferred to have been, received:

As noted, this understanding of what documents are in the record rests in part on drawing inferences from ambiguous statements and actions on the record, and to that extent the commission finds it unsatisfactory. The commission should not be required to use its intuition to determine what documents are in the record Beyond this, though, there is additional reason to find that this is not a satisfactory approach to determining what constitutes the evidentiary record in this matter.

In their briefs, both to the ALJ and to the commission, the parties have cited and relied on a number of other exhibits, as if they believe that they were received. Thus, Complainant has cited to Comp. Exs. 35, 71, 73, and 105, and Resp. Exs. 12, 17, and 106; Respondent has cited to Comp. Exs. 71 and 83 and Resp. Ex. 17. However, the commission's review has not found anything in the record which suggests that any of these exhibits were ever received. In addition, Respondent has asserted in its brief to LIRC that the record in this case "involved" 153 exhibits; this count is of course significantly higher than what the commission arrived at even when indulging inferences about what was received. These things raise the possibility that there were off the record rulings by the ALJ with respect to the admission of exhibits, which the parties are relying on, but which were never confirmed on the record and thus are not reflected in the transcript. Indeed, comments were made on the first day of hearing which seem to suggest that this may have occurred. (10)

In these circumstances, with this much uncertainty about the status of this many documents, the commission can not and will not attempt to conduct its review without further clarification of what documents are in the record.

In Reinke v. Pick `N Save Mega Food Centers (LIRC, Sep. 2, 1999), in the course of remanding another case to this ALJ for him to clarify a confused documentary record, the commission articulated a set of standards for the handling of documentary exhibits:

1)  If documents are used in the course of examination of witnesses and are referred to or discussed in the examination of the witness, they should be marked for identification. They should be physically marked either by the administrative law judge, or the court reporter if one is present. The marking should include the number or letter with which the document is being designated, and some kind of indication - at a minimum, something like "Exhibit" or "Ex." - that the document is a potential hearing exhibit. If documents are used and referred to at the hearing, even if there is no request by a party to have them marked for identification, the administrative law judge should do so as soon as possible, on his or her own motion, in the interest of the clarity of the record.

2)  Once documents have been marked for identification, they should thereafter be referred to by their identifying designation (whether or not other identifying detail is also added). If parties refer to marked documents without using their identifying designation, and the context is not adequate to allow a third party who may later be reading the record to determine what is referred to, the administrative law judge should not hesitate to intervene on his own motion to ask to have the record clarified as to what document is being talked about.

3)  All actions taken with respect to documents -- particularly marking them for identification, and receiving (or not receiving) them as exhibits -- should be taken on the record. If actions are taken off the record, they should be confirmed on the record as soon as the hearing resumes. Actions taken with respect to exhibits should be stated clearly, and with express reference to the identifying designation of the document, so that it will be clear to a third party (such as an ERD Legal Assistant who is preparing a Summary of Proceedings, or to the commission) what action is being taken.

The commission reiterates its statement in Reinke, that it is necessary that these standards be met if the commission is to conduct review. If they are not met, orders of the type the commission issues today in this case are to be expected.

Ruling On Attorney's Fees And Costs As To Motion To Compel -- It appears that Complainant filed a Motion To Compel in connection with discovery requests in this case. (11)   It further appears that there was a hearing on this motion, following which the ALJ issued a written ruling, on June 8, 1998. (12)

The ALJ clearly granted the Motion To Compel at least in part, and he made a number of orders for Respondent to comply with discovery requests and to produce requested documents. In addition, he stated:

The Administrative Law Judge will make a ruling on the Complainant's Attorney's Motion for Costs at such time as the Complainant's Attorney forwards to the ERD a statement of the Costs that it incurred in seeking this Motion to Compel.

Complainant's Attorney submitted an "Affidavit ... And Statement Of Costs And Fees Pursuant To The Motion And Order To Compel" in conjunction with the filing of Complainant's post-hearing brief in April, 1999. Respondent filed a lengthy response (concurrently with its filing of its brief of the merits); Complainant then filed a response to that, in August, 1999.

The ALJ addressed the matter of costs and attorney's fees in connection with the Motion To Compel, in his ultimate decision, issued on May 1, 2001. The entire discussion of the issue was as follows:

Additionally, the Administrative Law Judge hereby denies the Complainant's Motion For Attorneys Fees and Cost for obtaining discovery.

Complainant has raised the denial of the request for attorney's fees and costs as an issue in his petition for review.

Under the rules of the Equal Rights Division, Wis. Admin. Code Ch. DWD 218.14 (4), the administrative law judge has the same authority to compel discovery, to issue protective orders and to impose sanctions as the court has under Chapter 804. The provision which is relevant to the question of costs and attorney's fees in connection with motions to compel is Wis. Stat. § 804.12 (1)(c)1., which provides that

[i]f the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

The determination of whether a party's opposition to a discovery request was "substantially justified" and of whether other circumstances might make an award of expenses against that party unjust, calls for the exercise of discretion. The judge before whom the matter has actually played out, and who has thus heard the parties' arguments firsthand at the time that the discovery was being opposed and has been required to analyze those arguments in order to arrive at a decision on the underlying motion to compel, is for that reason in a particularly good position to make that decision. For these reasons, even though the commission may have the authority to review the ALJ's ruling on that issue de novo, it is appropriate for the commission give to some deference to the ALJ's decision on the issue. Because of that, it is desirable for the ALJ to actually specifically address and decide that issue.

However, there is nothing in the ALJ's decision here which suggests that his eventual decision on the question of costs and attorney's fees in connection with the motion to compel reflected the exercise of his discretion.

Notably, the ALJ's decision is inconsistent with the indication given by his ruling on the motion to compel, that he had decided at that point that he would award attorney's fees and costs to Complainant. At that time, he expressly invited Complainant's counsel to submit a statement of costs and fees. That would not have been necessary unless he had decided to award costs and fees. This indication that he was inclined to grant costs and fees at the time he granted the motion to compel, makes it all the more important to understand what his eventual rationale for denying them was, and thus makes it all the more important that he state such a rationale. However, he did not make either of the findings ("substantially justified" or "other circumstances") which are required by the statute before the judge can decline to award attorney's fees and costs, and he in fact completely failed to articulate any rationale for his eventual decision denying costs and fees. This warrants at very least a suspicion that he did not consider the statutory standards, and that he did not exercise his discretion in connection with that decision.

In Argonaut Ins. Co. v. LIRC and Johnson, 132 Wis. 2d 385, 392 N.W.2d 837 (Ct. App., 1986), in the course of discussing a hearing examiner's decision denying a request for a continuance without providing any explanation therefor, the Court of Appeals said:

Discretion contemplates a process of reasoning, beginning with the facts of record and moving toward "a conclusion based on a logical rationale founded upon proper legal standards." McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512, 519 (1971). Our first inquiry is whether discretion was in fact exercised. The inquiry is frustrated when, as in this case, the decisionmaker acts without giving the parties or the reviewing court any inkling of the reasons underlying the decision. While we often will undertake our own examination of the record to determine whether discretion has been exercised, Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 471, 326 N.W.2d 727, 732 (1982), we will not do so in all cases. Perrenoud v. Perrenoud, 82 Wis. 2d 36, 48-49, 260 N.W.2d 658, 664 (1978).

Discretion is more than an unexplained choice between alternatives. Reidinger v. Optometry Examining Board, 81 Wis. 2d 292, 297, 260 N.W.2d 270, 273 (1977). "[T]here should be evidence in the record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth." State v. Hutnik, 39 Wis. 2d 754, 764, 159 N.W.2d 733, 738 (1968). There is nothing in the record before us to indicate that the examiner exercised her discretion as that term has been defined by the courts, and her failure to do so is in itself an abuse of discretion. "Unless there is evidence that the [decisionmaker] has undertaken a reasonable inquiry and examination of the facts as the basis of his [or her] decision, [that] decision will be disregarded by this court. Such a decision on its face shows an abuse of discretion for failure to exercise discretion." McCleary, 49 Wis. 2d at 277-78, 182 N.W.2d at 520.

Argonaut Ins. Co., 132 Wis. 2d at 391-92. The commission has decided to set aside the ALJ's decision and remand this matter to him in part because it appears that the ALJ failed to exercise his discretion and exercised only his will in peremptorily denying attorney's fees and costs here. While the commission may well have the authority to simply take up such issues that have been abdicated by the ALJ and decide them itself, it is not inclined to do so here. Its function, at least in this respect, is to review the ALJ's exercise of discretion, and where as here the ALJ has apparently not exercised that discretion, the commission will send the matter back for him to do so.

The commission would also note, that there is a question as to whether the required procedures were met for a ruling on the question of costs and fees arising from a discovery motion. The statute does not only require the judge to either award costs or make the findings necessary to a decision not to award them (i.e., "substantially justified" or "other circumstances"); it requires the judge to hold a hearing in either case. Furthermore, consideration of the language of Wis. Stat. § 804.12 (1)(c) and of the way in which discovery disputes must be addressed in practice, suggests that the statute contemplates a hearing not merely on the underlying Motion To Compel, but specifically on the question of attorney's fees and costs in connection with the motion. However, the record here is unclear as to whether there was ever a hearing at which the question of awarding attorney's fees and costs in connection with the Motion To Compel was the issue, or one of the issues. If anything, the record suggests that there was not: in its June 2, 1999, "Response To Complainant[`s] . . . Request For Attorney's Fees And Costs Incurred In Seeking The June 8, 1998 Discovery Order", Respondent closed by stating that if the ALJ determined that fees were appropriate, it requested "the hearing provided for by Section 804.12 (1)(c) on this issue". For this reason, the ALJ has been directed to clarify this when he addresses this matter in his re- issued decision.

cc:
Attorneys Arthur Heitzer and Janet Goss
Attorney Thomas Krukowski

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) These binders were evidently the filings made by the parties prior to the hearing to satisfy Wis. Admin. Code Ch. DWD 218.17, which requires that parties disclose their potential exhibits prior to the hearing. Thus, the binder marked "Complainant's Exhibits" also contains a document entitled "Well's Proposed Exhibits" which lists 95 exhibits, corresponding to the documents in the binder (with the exception of the described Ex. 95, which is missing from the binder). The binder marked "Respondent's Exhibits" also contains a document entitled "Index of Documents On Respondent's Exhibit List" which lists 90 exhibits, corresponding to the documents in that binder.

(2)( Back ) Based both on the number and on its content, the document bearing the exhibit label "C#95" is evidently the document that had been under tab number 95 in the "Complainant's Exhibits" binder.

(3)( Back ) For example, the documents shown on the exhibit index as having been received at p. 36 of Vol. 2 of the transcript as Complainant's Exhibits 51 and 54, were in fact Respondent's Exhibits 51 and 54; in addition, while the index to Vol. 4 of the transcript shows that Complainant's Exhibits 95, 97 and 104 were received at pp. 150 and 151, the transcript itself shows that the documents were objected to and were "received" only as part of an offer of proof.

(4)( Back ) See, e.g., T. Vol. 4 p. 52, T. Vol. 6 pp. 4, 108, 109, 110, 111, 134, 204, T. Vol. 8 p. 122.

(5)( Back ) See, e.g., T. Vol. 6 p. 134, T. Vol. 8 pp. 80-81.

(6)( Back ) See, e.g., T. Vol. 5 pp. 82-83, 85, 87, 96-102, 114, T. Vol. 7 p. 202, T. Vol. 8 pp. 165-66.

(7)( Back ) See, T. Vol. 6 pp. 109 ff.

(8)( Back ) See, e.g., T. Vol. 2 p. 98, T. Vol. 6 p. 204, T. Vol. 7 pp. 147, 152-53, 203, T, Vol. 8 pp. 121-22 (regarding C. Ex. 25).

(9)( Back ) See, e.g., T. Vol. 2 pp. 95, 98, T. Vol. 5 p. 87.

(10)( Back ) See, T. Vol. 1 p. 12; T. Vol. 1 p. 46; T. Vol. 1 p. 164 ff.

(11)( Back ) The commission was not able to find the original discovery request (interrogatories and requests for production) in the file forwarded to it by the ERD, although the substance of the request was reproduced in the Respondent's response to it, which is in the file. More troubling, is the fact that the original Motion To Compel could not be located in the file, in any incarnation. The ALJ is directed in the commission's Order in this matter to either locate the original of this Motion or to obtain a copy of it from the parties.

(12)( Back ) Again, the commission is compelled to state merely what "appears" to have occurred, because the ALJ's ruling does not contain any preliminary recitation of the procedural background for the ruling, including whether there was a hearing held on the motion. The commission's inference about a motion hearing is based on the Affidavit of Complainant's counsel which accompanied his subsequent request for an award of costs in connection with the discovery matter, from which it appears that there was a telephone conference between the ALJ and counsel for both parties on June 5, 1998, presumably involving the discovery matter, as counsel for complainant included time from this conference in his motion costs fee affidavit. The ALJ is directed in the commission's Order in this matter to specifically state whether and when a hearing was held on this motion.

uploaded 2001/03/01