Wis.LIRC ER Decision: Jackson, James - December 14, 1990 - Procedure -- right to be represented by representative (including non-attorney representative) of one's own choosing at ERD hearing - assuming ALJ has any power to limit exercise of this right, it can only be limited for compelling reason -- remand where ALJ erroneously barred representative and complainant then walked out; Procedure - when last-minute request for postponement is made and denied and the complainant then refuses to present evidence and leaves hearing, ALJ should state reasons for denying postponement in decision

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JAMES I. JACKSON, Complainant

CITY OF MILWAUKEE
MILWAUKEE PUBLIC LIBRARY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8950041, EEOC Case No. 26G890373

The Administrative Law Judge issued a decision on October 26, 1990 dismissing the complaint with prejudice based on the Complainant's failure to proceed at hearing. Complainant filed a timely petition for Commission review. Based on a review of the record, and having considered the arguments raised by the petitioner, the Commission makes the following:

ORDER

The decision of the Administrative Law Judge dated October 26, 1990 is set aside, and this matter is remanded to the Equal Rights Division for hearing.

Dated and mailed December 14, 1990.

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The order dismissing the complaint in this matter was premised on the Complainant's actions in leaving the hearing without presenting any evidence. Based on a review of the record, including the hearing tapes, the Commission determined that the Complainant's decision to leave the hearing was precipitated by certain rulings made by the Administrative Law Judge ("ALJ"), not mentioned in the ALJ's order, with which the Complainant disagreed.

One of these rulings was the denial of a request for postponement of the hearing. (1 ) This request was apparently based on Complainant's inability to obtain counsel and on an alleged medical inability to proceed effectively. With respect to the inability to be represented by counsel, it appears that Complainant had many months notice of the hearing, and several months notice that an attorney who had represented him in connection with related matters would not represent him in the ERD matter. Nevertheless, he made only late and limited efforts to obtain another attorney. With respect to the alleged medical inability to proceed, the record before the Commission does not establish that Complainant was unable to proceed because of any physical, mental or emotional condition. The Complainant's petition for Commission review does not directly complain of the denial of the postponement request. The Commission is not persuaded that the denial of the request for postponement was error.

The other ruling denied Complainant the right to be represented at the hearing by the representative of his choosing. Present at the hearing with Complainant was Mr. Carl Rucker, the owner of the Rucker Detective Agency, for which Complainant had been employed while he performed services for the Respondent in this case. Complainant requested to be allowed to have Rucker act as his representative and assist him in the hearing. After entertaining objections to this from Respondent, the ALJ ruled that Rucker could not act as Complainant's representative at the hearing.

The Division's administrative rules provide, at Wisconsin Administrative Code, chapter Ind 88.16(2), that "parties may appear at the hearing in person and by counsel or other representative." (emphasis added) The right to appearance by a non-attorney representative established by this rule is not subject to any express limitation. The ruling of the ALJ in this case can be sustained only if 88.16(2) is construed as being subject to some type of implicit power on the part of the ALJ to exercise discretionary authority to bar a particular representative. Assuming without deciding that such a power exists, the Commission concludes that the ALJ could only limit a party's choice of representative for a compelling reason. The Commission does not believe that such a compelling reason existed here.

After the Complainant requested to be allowed to have Rucker act as his representative, the ALJ asked the Respondent if it had any objection, and Respondent indicated that it did, basing its objection on the assertion that Rucker was a "party in interest" in his own right and that Respondent had planned to call him as an adverse witness and desired to have him sequestered as a witness. The ALJ then began speaking, but he was interrupted by Rucker, who made a statement to the effect that he had no interest in the proceeding. The ALJ cut Rucker off, indicating in essence that he would not be heard from until he was recognized as a representative, if he was, and stating, "For three reasons I will deny the request." The following exchange then took place:

RUCKER (to Complainant): If I were you, James, I would --

ALJ: First of all -- Mr. Rucker --

RUCKER (to Complainant): -- get out of here. This is the biggest bunch of bullshit you've ever seen. I don't know why people in this community bother --

ALJ: Mr. Rucker --

RUCKER: to come to the Equal Rights Division --

ALJ: Mr. Rucker --

RUCKER: This is ridiculous. This man is not represented by a lawyer --

ALJ: Mr. Rucker, I, first at this point then I will regarding to this matter sequester, I'll make a sequester --

RUCKER: Because, any time, this is a legal lynching here, this man doesn't have anybody to represent him, and he's sick, and you're going to proceed, you ought to be ashamed of yourself, you're, you're, this is outrageous --

COUNSEL FOR RESPONDENT: So that it appears for the record, your Honor, I object to the --

RUCKER: That's absolute -- look, of course you would want to face this man, he don't know what the hell he's doing here --

ALJ: Mr. Rucker --

RUCKER: Aw, goodbye. (Leaves)

After Rucker left the room, counsel for the Respondent suggested that Rucker's remarks rose to the level of contempt. The ALJ, in response, noted that he did not have the authority to penalize people for contempt. He then stated:

"Before Mr. Rucker did not give me the opportunity to respond and interrupted me, giving me the third position on this, and that is, the reason for denying it is Mr. Rucker's expressed contempt for proceeding, I was going to indicate that there were two problems with the request."

Thereupon, the ALJ indicated that the two problems he saw with the request to allow Rucker to act as Complainant's representative were the fact that Rucker had a conflict of interest and the fact that, as the ALJ expressed it, when the choice of representative changes "in the middle of the stream, I think I have some right to review on it."

Next, after exploring and rejecting the grounds for postponement referred to above (i.e., lack of an attorney, and a medical problem of some sort), the ALT stated that the hearing would go forward. The Complainant, making reference to the denial of his request to have Rucker act as his representative, stated that he could not proceed, and left.

It thus appears that the ALJ advanced three reasons for denying the request to allow Rucker to act as the Complainant's representative. One reason was a "conflict of interest." This was a reference to the fact that Rucker had sued the City of Milwaukee concerning the non-renewal of the contract between the City and Rucker's detective agency under which the Complainant, an employe of the agency, had performed services in the City Library. The Commission does not believe that this connection between Rucker and the Complainant's charge against the City justifies refusing to allow him to represent the Complainant. Another reason was a supposed change of representatives "in the middle of the stream." There was no basis for the ALJ's objection in this regard; there had been no such change. The first words out of the Complainant's mouth after the ALJ first went on the record were the Complainant's request to have Rucker act as his representative. To have allowed the request at that point would not have disrupted the proceedings. The third reason given by the ALJ was the conduct and remarks of Rucker at the hearing. While the remarks were critical of the forum, the Commission does not believe that they rose to the level of contempt. Rucker's obscene characterization of the proceedings was directed to the Complainant, not to the tribunal. The comments he directed to the tribunal, although perhaps intemperate, were not contemptuous. The tone of voice in which Mr. Rucker expressed himself was also not unreasonably loud. Most importantly, the remarks were made after the ALJ indicated that he was denying the request. Thus, the remarks obviously could not have constituted one of the ALJ's reasons for denying the request.

Although the ALJ did not state it as a reason for his ruling, the Commission notes that the Respondent objected in part because it asserted a desire to call Rucker as a witness and to have witnesses sequestered. No statute or rule gives a party an absolute right to a sequestration order, while the right to appear by a representative established by Ind 88.16(2) is, on its face, unqualified. Therefore, if one party's desire for a sequestration order is to be given precedence over the other party's desire to be represented by someone of their choosing, the need for the sequestration order must be particularly compelling. The Respondent, however, offered no particular justification for the entry of a sequestration order in this matter. The Commission also notes that neither the Complainant personally nor Rucker were allowed to be heard in response to the motion for the sequestration order. The Commission does not consider that the Respondent's interest in the sequestration order in this matter outweighed the Complainant's interest in being represented by a person of his choosing.

The Commission therefore concludes that the ALJ erred in ruling that Rucker could not act as Complainant's representative. Furthermore, the Commission is not inclined to hold that the Complainant abandoned his right to be heard on his complaint because he left the hearing in response to this ruling. The denial to a party of their right to be represented by a representative of their choosing is a significant one which is always potentially prejudicial, particularly when the effect of the ruling is to leave the party obliged to proceed immediately, without a representative. Therefore, the order of dismissal must be set aside.

On remand, the Equal Rights Division should schedule this matter for hearing in due course. If further requests for postponement are made and denied and the complaint is eventually dismissed for either failure of the Complainant to appear or failure of the Complainant to proceed at hearing, the order of dismissal should set forth the reasons for the denial of the postponement request. Complainant is entitled on remand to appear at hearing by a representative of his choice.

NOTE: The Commission notes that, prior to the hearing, the Respondent filed a motion, denominated one for "summary judgment," seeking dismissal of the complaint on a number of grounds. One of these was that Complainant was not an employe of the Milwaukee Public Library. Some of the statements made by the ALJ on the record at hearing suggest (although this is not clear) that the ALJ may have been inclined to see some merit in this argument. Wishing to avoid any likelihood that the complaint in this matter will again be inappropriately dismissed without hearing, the Commission takes this opportunity to express its view that there is no merit in this position. At the times material herein, the City of Milwaukee Library was indisputably an "employer" and the employe was indisputably an "employe," whether or not the former was the employer of the latter under common law standards. These standards do not govern. The reach of the Wisconsin Fair Employment Act, in terms of the relationships it encompasses, is at least as extensive as that of Title VII of the Civil Rights Act of 1963, 42 U.S.C. � 2000(e), et seq., as it was interpreted in Sibley Memorial Hospital v. Wilson, (D.C. Cir. 1973) 488 F.2d 1338. Russ v. City Veteran Cab Co. (LIRC, December 4, 1987). The situation presented in this case is functionally equivalent to that which was presented in Collins v. Madison Area Technical College and Kelly Services (LIRC, December 19, 1986), in which coverage was found.

Additionally, the Commission wishes to note that another argument advanced by Respondent in its motion for "summary judgment," that the Complainant's charge is barred by virtue of the doctrine of res judicata since an action brought by Rucker against the City of Milwaukee had been dismissed, is considered to be without merit.

cc: Bruce D. Schrimpf

110

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Footnotes:

(1)( Back ) Where a complaint is dismissed for failure of a complainant to appear at the hearing, the ALJ must discuss in his order of dismissal his reasons for denying any last-minute request for postponement that preceded the hearing. Schilling v. Walworth County (LIRC, March 9, 1983), Jaskolski v. M & I Data Service (LIRC, May 23, 1990). A functionally equivalent situation is presented when a last-minute request for postponement is made and denied and the complainant, while initially present at the hearing, refuses to present any evidence and leaves. In this circumstance, the ALJ should have indicated in his decision that the request for postponement had been made and denied and he should have discussed his reasons for denying the request.

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