Wis.LIRC ER Decision: Jackson, James - October 28, 1993 - Procedure - no per se requirement that complainant be present at a hearing, only that evidence be presented on the his/her behalf - where complainant appears but puts in no evidence, not a "failure to appear" - but dismissal is appropriate for failure of proof; Coverage of WFEA - can apply to discrimination by a "person" against someone not their employee; Procedure - res judicata - not applicable where complainant not a party or privy of a party to previous suit

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JAMES I. JACKSON, Complainant

CITY OF MILWAUKEE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9230848

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued an order in the above-captioned matter on September 3, 1993 which summarily dismissed the complaint, without making findings of fact or conclusions of law, based on "failure to proceed." The complainant filed a timely petition for review by the commission.

For the reasons stated in the accompanying Memorandum Opinion, the commission has concluded that dismissal was not warranted on the basis of "failure to proceed." It has also concluded that the complainant must be treated as having rested his case in chief on the basis of the testimonial evidence he presented. The commission has on its own motion considered the question of whether the evidence submitted by complainant in his case in chief was adequate to warrant a finding of probable cause in his favor.

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

FINDINGS OF FACT

1. The City of Milwaukee ("city") is a municipal corporation organized under and existing pursuant to the laws of the State of Wisconsin, and is a body corporate and politic.

2. The City of Milwaukee Public Library ("library") is a public library established, equipped and maintained by the city pursuant to sec. 43.52, Stats., and governed by a library board ("board") pursuant to sec. 43.54(1)(am), Stats.

3. During 1988 the board was party to a contract with Rucker Detective Agency ("Rucker") pursuant to which Rucker provided persons employed by Rucker to perform security guard services for the library.

4. The contract between Rucker and the board, which was unilaterally terminable by the board for any reason on ten days notice, expressly incorporated the terms of the bid specifications which the board had announced when soliciting bids for the contracted services, and among the provisions of the specifications thus incorporated were requirements that the security guards provided by Rucker would perform their services at the facilities of the library and on schedules determined by the library, that the security guards so provided were subject to supervision by the library while performing those services, and that any of the security guards so provided would removed by Rucker if the library deemed them not qualified to perform the assigned work.

5. The library had significant de facto authority to control and affect the terms, conditions and tenure of employment of employes of Rucker who were assigned by Rucker to work in the library.

6. During 1988, the head of circulation and security for the library was Robert M. Pfeiffer. He dealt with Rucker, and with the security guards assigned to the library by Rucker, on behalf of the library.

7. James Jackson ("Jackson") was hired by Rucker in 1988, and in August 1988 he was assigned by Rucker to perform security guard services for the library pursuant to the contract between Rucker and the library.

8. Jackson worked, as an employe of Rucker, performing services in, for, and subject to the authority of the library, until approximately December 22, 1988. He voluntarily ceased performing those services at that time.

Based on the FINDINGS OF FACT made above, the commission now makes the following:

CONCLUSIONS OF LAW

1. The City of Milwaukee, operating as the Milwaukee Public Library, is a "person" within the meaning of secs. 111.321 and 111.325, Stats.

2. James Jackson is an "individual" within the meaning of secs. 111.321 and 111.322, Stats., and an "employe" within the meaning of sec. 111.325, Stats.

3. There is no probable cause to believe that the City of Milwaukee, operating as the Milwaukee Public Library, engaged in any act of employment discrimination against James Jackson on the basis of his race, his sex, or any actions he may have engaged in to oppose alleged discriminatory conduct, within the meaning of the Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above the commission now makes the following:

ORDER

That the complaint in this matter be dismissed.

Dated and mailed October 28, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

Failure to Proceed -- This same case was before the commission almost three years ago, after an administrative law judge dismissed the complaint when Jackson walked out of the hearing. The commission set aside the order of dismissal, and remanded for hearing. Jackson v. City of Milwaukee Public Library (LIRC, December 14, 1990). It is now before the commission again as a result of another order, by another administrative law judge, dismissing the complaint based on Mr. Jackson again walking out of the hearing.

Unlike the departure from the hearing prior to the first dismissal, which occurred at the beginning of the proceedings before any witnesses had been sworn and before any evidence of any kind had been offered, the departure from the hearing which led to the dismissal order now before the commission occurred at the end of two full days of hearing. Three witnesses (Mary A. Mack, Carl Rucker, and Jackson) had been sworn and testified. (8/16/93 TR 10, 5/20/93 TR 6 ff, 100 ff)

There is no dispute that Mary Mack submitted to cross-examination and was excused from further testimony when counsel for the City indicated he had no further questions for her (8/16/93 TR 12-13). Carl Rucker, in addition to submitting to examination by the ALJ and Jackson, submitted to cross-examination by counsel for the City (5/20/93 TR 119, 8/16/93 TR 42). There were points at which Rucker's resistance to cross-examination led the ALJ to threaten to strike his direct testimony, but this never occurred. Even when Rucker finally directly refused an order that he answer a question put to him by counsel for the City and walked out (8/16/93 TR 144-47), and even when the ALJ then virtually invited counsel for the City to move for some type of sanction based on Rucker's refusal to allow cross examination (8/16/93 TR 149), counsel for the City made no such motion, but instead indicated in effect that he was content to simply treat the cross-examination of Rucker as having been concluded:

"ALJ: . . . Attorney Schrimpf, is there anything that you have to say in regard to that matter?

Mr. Schrimpf: To be honest with you, your honor, up until the point in time that Mr. Rucker left, while I did have some additional questions for him, I would have no particular objection to leaving the testimony of Mr. Rucker as it is. There would have been some very brief questions. However, on the other hand, I don't have any objection to just leaving it the way it is." (8/16/93 TR 149)

Finally, with one exception which will be discussed below, Jackson also was available for cross-examination following his examination by the ALJ and his testimony given on his own behalf, but counsel for the City declined the opportunity of cross-examination (8/16/93 TR 40).

Jackson directly indicated that he had no other witnesses in his case in chief (8/16/93 TR 149). The ALJ indicated, in response to direct inquiry from counsel for the City, that the only thing he viewed as remaining to be taken care of before Jackson was treated as having rested his case in chief, was consideration of whether to receive the exhibits which Jackson had moved into evidence (8/16/93 TR 149-150).

Jackson's final departure from the hearing occurred after this point, in connection with efforts to conduct a voir dire examination of Jackson with respect to the documents he had moved into evidence and which the ALJ was considering. (8/16/93 TR 150-168). Jackson had been examined by the administrative law judge with respect to these exhibits, but when the administrative law judge indicated that he would allow counsel for the City to conduct an examination of Jackson with respect to the exhibits, Jackson walked out (8/16/93 TR 168). In effect, therefore, Jackson refused to cooperate in allowing opposing counsel to conduct voir dire respecting exhibits he had moved into the record.

The ALJ 's decision in this matter recites that the complaint was dismissed on the basis of "failure to proceed." This is a term sometimes invoked by administrative law judges to explain dismissals issued when a complainant appears at a hearing but leaves before putting in any evidence. (See, e.g., the original administrative law judge's order of dismissal in this matter, dated October 26, 1990.) In such cases, the administrative rule providing for dismissal of complaints based on "failure to appear" cannot be relied on because the party has in fact appeared. Nevertheless, it is obviously appropriate to dismiss the complaint. The dismissal in such a case is premised not on the "failure to proceed" per se, but on the inevitable consequence of the failure to proceed: a total absence of evidence supporting the complaint. See, Cooper v. Janlin Plastics (LIRC, June 5, 1992). In such a case, it is not necessary for the AI.J to render a conventional decision making findings of fact; indeed, it would be impossible to make findings of fact. A summary dismissal order is appropriate because the failure to present any evidence establishes as a matter of law that there has been a failure of proof.

Seen in this way, it is obvious that what happened in Jackson's case was not a "failure to proceed." He not only appeared, but he put in a case which included the testimony of three witnesses.

It is important to note that Jackson had not only presented testimonial evidence in support of his case, but had also (with the exception of the matter of the exhibits, discussed below) effectively rested his case (8/16/93 TR 149). He would not have been required to be present at any continuation of the hearing held to take evidence put in by the City. There is no indication that the City had secured his presence there by subpoena. As the commission held in Cooper v. Janlin, there is no per se requirement that a complainant actually be present at a hearing, only a requirement that evidence be presented on the complainant's behalf. It is true that Jackson's departure effectively precluded the City from conducting any voir dire with respect to the exhibits which Jackson had moved into evidence, but this is all it did. Any prejudice to the City from this could be cured simply by refusing to accept the documents. The ALJ ' s order dismissing the complaint here went beyond this. In effect, it disregarded all of the testimonial evidence that had been submitted, and constituted a sanction imposed on Jackson to punish him for walking out.

Courts have both statutory authority and inherent power to summarily dismiss a claim based on such things as failure to prosecute, failure to comply with procedural statutory rules, and failure to obey court orders, even when (as in this case) the prejudice to the other party from the plaintiff' s misbehavior could be completely cured by a less drastic response. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273-74, 280-82, 470 N.W.2d 859 (1991). In the commission's view, however, administrative law judges have no such authority. They may dismiss a complaint based on the failure of a complainant to appear in person or by a representative, pursuant to Wisconsin Administrative Code chapter Ind 88.16(5). They may dismiss a complaint based on total failure of proof when a complainant appears and refuses to present any evidence. Cooper v. Janlin, supra. In recognition of the rights to conduct cross-examination and to rebut documentary evidence created by sec. 227.45(2) and (6), Stats., and the general description of the powers of ALJs contained in sec. 227.46, Stats., an ALJ presumably has the authority to take curative action such as striking the direct testimony of witnesses or parties who will not submit to cross-examination, or refusing to receive documentary evidence which the offeror will not submit to voir dire on. Beyond this, however, there is no basis for implying some general authority to impose punitive sanctions which go beyond what is necessary to ensure a fair hearing, and which are instead intended to vindicate some larger purpose.

The commission therefore concludes that the ALJ exceeded his authority by ordering dismissal of the complaint solely on the grounds of Jackson's abandonment of the hearing. He should have responded to the refusal to allow voir dire by refusing to receive the documents that had been moved into evidence by Jackson, and he should have thus treated Jackson as having rested his case solely on the testimonial evidence presented. He could, at that point, have issued a ruling on the adequacy of Jackson's evidence, either on motion of the city or on his own motion. In order to avoid what it concludes would be a pointless remand of this much-delayed case, the commission has decided that it will do itself what the ALJ would have been authorized to do. It therefore addresses the adequacy of Jackson's case, on its own motion.

Threshold issues -- Earlier in this case's history, the city raised two threshold jurisdictional issues. Although it expressed opinions on these issues in its earlier decision, the commission finds it appropriate to address them again here. The previous decision's comments were in the nature of dicta, as the procedural status of the case at that point did not absolutely require them. Since it reaches the substance of the probable cause issue, now, however, the questions must be put to rest.

The first threshold issue concerns whether the FEA applies to the allegations of discrimination by the city made by Jackson. It does. The FEA, by its express terms, is not limited to discrimination by "employers" against their own "employes." It provides, in sec. 111.321, Stats., that "no employer . . . or other person may engage in an act of employment discrimination as specified in sec. 111.322 against any individual." (emphasis added) Section 111.322, Stats. provides simply that it is an act of employment discrimination to (among other things) "bar or terminate from employment . . . any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment." (emphasis added) While sec. 111.325, Stats. provides that it is unlawful for "any employer . . . or person to discriminate against any employe or any applicant for employment," the disjunctive use of the term "person" clearly implies that the "person" doing the discriminating can be someone or something other than an "employer," and can therefore be something or someone other than the employer of the person being discriminated against.

The city is a body corporate and politic. Section 66.012(6), Stats. As such it is a "person" within the meaning of the definition of that term in sec. 990.01(26), Stats. That definition applies to the use of the term "person" in the FEA, since the term is not separately defined there. Section 990.01, Stats. Jackson is clearly an "individual." He was also an "employe" in that he was an employe of Rucker Detective Agency. Thus, the FEA is expressly applicable.

The city' s argument to the contrary, if accepted, would allow a businessman to sexually harass a temporary help agency employe working in his office, or to discriminate between such temporary help agency employes in assignments and other conditions of work simply because of race, or to demand that the temporary help agency rescind the assignment of a qualified employe of the agency to his business simply because of the person's age. Considering the declaration of policy expressed by the Legislature in sec. 111.31, Stats., it is unthinkable that the Legislature would have adopted a statutory scheme allowing this outcome. Considering the express language of secs. 111.321, 111.322, and 111.325, Stats., it is clear that they did not. That is why the commission has consistently construed the coverage of the FEA broadly, holding that a "person" other than an employer, labor organization or licensing agency can violate the Act if it engages in discriminatory conduct which has a sufficient nexus with the denial or restriction of some individual's employment opportunity, Olivares v. U.W.-Oshkosh and U.W.-Madison (DILHR Commission, October 23, 1973), holding that a public employer could be found liable for discrimination if it caused a temporary help agency to terminate the assignment of an employe of that agency at the public employer's work place, Collins v. MATC and Kelly Services (LIRC, December 19, 1986), and holding that a cooperative organization of taxicab owners could be found liable for discrimination if it caused an employer who was a member of the organization to take adverse action against one of his employes; Russ v. City Veteran Cab Co. (LIRC, December 4, 1987).

Another threshold issue is whether Jackson's complaint is barred by res judicata, because of an earlier lawsuit between Rucker and the city. This doctrine is not applicable, however, unless there is an identity of parties in the former and subsequent actions. The city argues that there is sufficient identity of parties here because Jackson and Rucker were "privies." The authority cited by the city in support of its argument, that Jackson and Rucker were "privies" adequate to allow invocation of res judicata notwithstanding the lack of identity of parties, consists in its entirety of a definition of the word "privies" taken from Black' s Law Dictionary. Resort to a more conventional and persuasive source of authority on the law in Wisconsin -- decisions of the Wisconsin Supreme Court -- leaves little question that, for purposes of application of res judicata, there is simply no way that Jackson's status of (at most) a potential beneficiary of contractual arrangements between Rucker and the city made him "in privity" with Rucker as to Rucker's lawsuit against the city concerning the termination of the contract. The type of "privity" necessary to the city's argument concerns derivative rights of property and "relates to persons in their relation to property and not to any question independent of property." Hart v. Moulton, 104 Wis. 349, 354, 80 N.W. 599 (1899). "Privies are those who succeed to the ownership of that property or some right or interest therein under one of the parties to the litigation, directly or by mesne conveyances, by gift, by kinship, or by operation of law." Kimberly Clark Co. v. Patten Paper Co., 153 Wis. 69, 86, 140 N.W. 1066 (1913).

Thus, because the allegations here are subject to the FEA and because Jackson was not a party or privy of a party to the lawsuit over Rucker's contract, the substance of the allegations is appropriately considered.

Adequacy of complainant's case -- The commission concludes that Jackson failed utterly to prove probable cause that a violation of the Act occurred. Neither of Jackson's witnesses provided any evidence in support of his allegations which the commission finds credible. The commission specifically notes in this respect that, based on his persistent evasiveness and argumentative resistance to examination, it does not consider Carl Rucker 's testimony to have been credible.

The testimony of Jackson was also clearly not credible. In effect, Jackson continuously impeached his own credibility by asserting that he suffered from mental illness which limited or destroyed altogether his ability to actually recall the alleged events in question. See, e.g., 5/20/93 TR 16, 30, 43, 53, 8/16/93 TR 27, 30-31). In Tatum v. LIRC and FDL Foods, 132 Wis. 2d 411, 418-19, 392 N.W.2d 840 (Ct. App. 1986), the court of appeals held that an equal rights ALJ could properly reject a complainant's testimony as being incredible, where she acknowledged that she suffered from a mental illness which involved "relentless" auditory hallucinations and that she heard her supervisor "talking to her" at home. Jackson's testimony was based almost entirely on his recollection being "refreshed" by his reliance on documents -- but these are the documents that are appropriately excluded from the record because Jackson walked out and thus prevented the City from conducting voir dire on them. Without these documents, and with Jackson's affirmative assertion that he actually could not remember any of the alleged incidents which he cites as discrimination, Jackson's testimony is entitled to no weight. It is for these reasons that the commission has intentionally failed to make any findings of fact addressing Jackson' s operative allegations; there is simply no credible evidence which would support such findings.

110

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

uploaded 2001/03/07