Wis.LIRC ER Decision: Polesky, Charles - August 30, 1996 - Procedure - failure of a manager of the employer to appear at a deposition does not justify striking employer's defensive pleading - which would have no effect, since "default" judgments are not granted for failure to file answer - complainant already moved for and obtained order barring the manager as a witness; Procedure - ALJ's decisions are final decisions of Department unless appealed; Procedure - Decisions need not expressly address all the evidence and all the arguments

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

CHARLES A. POLESKY, Complainant

UNITED BRAKE PARTS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9250821, EEOC Case No. 26G920814

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 conclusion in that decision as its own.

DECISION

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

Dated and mailed August 30, 1996
polesch . rsd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

Reames' deposition issues -- Complainant argues in his Brief in Chief to the commission that "the behavior of Respondent's key witness, the fugitive (sic) (1 ) Reames, falls squarely within the language of" sec. 885.11(5), Stats., and that that statute therefore "requires" that the Respondent's defense be stricken. The commission disagrees. First, sec. 885.11(5), Stats. specifically refers to courts and governs proceedings only in courts; it is not applicable to administrative proceedings under the Fair Employment Act. That the section's inapplicability is not merely legal, but functional as well, is illustrated by the fact that under the Fair Employment Act the striking of a respondent's pleading would have no effect: there is no right to a "default" decision even if a respondent fails to file an Answer altogether, Bullock v. Milwaukee County (LIRC, 10/15/82), Sawi v. Embassy Restaurant and Lounge (LIRC, 03/11/87), so there can be no "default" if a respondent's Answer is stricken. Second, even assuming its applicability as a general matter, section 885.11(5), Stats. refers to the refusal or neglect of a party to appear or testify or depose; however, the focus of Complainant's argument is Mr. Reames, who was not the party respondent or an owner or officer of the party respondent but merely one of a number of regional managers employed by respondent. Therefore, the applicability of the section to this particular situation is not free from doubt. Third, sec. 885.11(5), Stats. does not require anything; rather, it permits a court to take certain action in the court's discretion.

Because the Equal Rights Division has expressly provided by administrative rule that all of the sanctions available in court under sec. 804.12, Stats. for refusal to cooperate in discovery are also available at the level of administrative hearings before the Division, see, Wis. Admin. Code Ch. ILHR 218.14(4), the most directly applicable and appropriate provision for the commission to consider is not sec. 885.11(5), Stats., but rather sec. 804.12(4), Stats. In fact, as the Administrative Law Judge noted, Complainant availed himself of the applicability of that section, and moved for sanctions for Reames' failure to appear for continued deposition. However, he did not seek an order rendering a judgment by default against the Respondent as sec. 804.12 (2) (a) 4. , Stats. allows, but rather moved only for an order excluding Reames as a witness, a motion which the Administrative Law Judge granted. Nevertheless, in what was clearly an intentional strategic decision, Complainant elected to introduce the transcript of Reames' deposition testimony. In these circumstances, the commission sees no significant merit in the argument that what amounts to a default decision should be rendered against Respondent or that Reames' deposition testimony should not be considered.

"Admissions against interest" -- Complainant makes numerous references to witnesses for the Respondent making "admissions against interest". This term may be Complainant's hybridization of "admission by party opponent" (sec. 908.01 (4) (b), Stats.) and "statement against interest" (sec. 908.045(4), Stats.). However, both of these legal concepts relate to applicability of the rule against hearsay, and the commission does not understand the Complainant's argument in this respect to be that the "admissions against interest" he refers to should have been excluded. It therefore seems more likely, that the term is simply used as a shorthand to refer to evidence offered by Respondent which Complainant believes cuts against the Respondent's own case. Thus, it is not an argument about a legal issue, but rather about the weight of evidence. The commission has carefully considered the points Complainant marshals on these points, but (as discussed below) it simply differs from Complainant on the weight and persuasiveness of the evidence.

Adequacy of justification for the findings -- Complainant objects that the Administrative Law Judge's decision does not specifically identify the witnesses relied on to make his findings of fact, (2 ) and is otherwise inadequate in the extent to which it considers and addresses the evidence. The Complainant's argument is not consistent with well-established law concerning the nature of the decision-making expected in this kind of administrative forum.

There is no requirement that an administrative decision be entered with exacting specificity. Door County Highway Department v. DILHR, 137 Wis.2d 280, 295, 404 N.W.2d 548 (Ct.App. 1987). In particular, it is not necessary for administrative agencies to give reasons for the implied rejection of all alternatives in the evidence, as this would be too onerous a burden. Wisconsin's Environmental Decade, Inc. v. Public Service Corp., 98 Wis.2d 682, 702, 298 N.W.2d 205 (1980). This applies to credibility issues; a specific finding that the testimony of a party was not believed, is not required. Bowen v. Industrial Commission, 239 Wis. 306, 312, 1 N.W.2d 77 (1941). The commission is simply not required to set out in detail in its decisions all of its conclusions as to what evidence it believed and what it rejected. State ex rel. Harris v. Annuity and Pension Board, 87 Wis.2d 646, 661, 275 N.W.2d 668 (1978).

The commission's findings need be only as to the ultimate facts where the evidence before the commission is sufficient to establish the ultimate facts declared or found and such facts are inherent in and necessary to the determination of the questions involved in arriving at the decision. Van Pool v. Industrial Commission, 267 Wis. 292, 294, 64 N.W.2d 813 (1954). Ultimate or general findings imply all facts necessary to support them, and a finding not explicitly made may be inferred from other properly made findings and from findings which, even though not made, would be supported by evidence in the record or inferences which can be drawn from the evidence. Valadzic v. Briggs & Stratton Corp. and DILHR, 92 Wis.2d 583, 591, 286 N.W.2d 540 (1979); Doersching v. Funeral Directors, 138 Wis.2d 312, 323, 405 N.W.2d 781 (Ct.App. 1987); Local 695 v. LIRC, 147 Wis. 2d 640, 643, 433 N.W.2d 638 (Ct.App. 1988).

These legal principles are summarized and confirmed by sec. 227.47, Stats., which provides that "findings of fact shall consist of concise and separate statement[s] of the ultimate conclusions upon each material issue of fact without recital of evidence". The commission is satisfied that the decision of the Administrative Law Judge in this case complies with this rule. If anything, the decision provides more in the way of analysis of the facts and commentary on the weight and believability of the evidence, than is strictly required by law.

Weight and persuasiveness of evidence; credibility - Complainant's argument is largely a reflection of his evidently fervent opinion that the Respondent's witnesses were not believable. The commission has carefully considered the evidence, as well as the Complainant's theories as to why certain assertions should or should not be believed, but it remains unpersuaded that the termination of the Complainant has been shown to have been for any other reason than the Respondent's genuine dissatisfaction with his job performance.

As noted above, the Complainant has vehemently complained that the Administrative Law Judge's decision does not address the facts and issues in enough detail, but the commission disagrees. It believes that the ALJ has thoroughly analyzed the factual and legal issues presented. The commission also believes that the Administrative Law Judge's decision adequately addresses the material issues which Complainant has argued in his brief to the commission, (3 ) and for this reason the commission chooses not to exhaustively address the numerous assertions of factual error made in Complainant's briefs. Just as an appellate court is not a performing bear which is required to dance to each and every tune played on appeal, State v. Waste Management of Wisconsin, Inc., 81 Wis.2d 555, 564, 261 N.W.2d 147 (1978), so the commission is not required to address every argument a party may choose to develop and present, when the evidence supports certain findings of fact which are dispositive of the claim and the material factual and legal arguments have been adequately addressed below. This is a mine-run case in which the principal if not sole issue is the factual question of the subjective motivation of certain agents of the Respondent in a decision they made, and in which the evidence, while it may allow reasonable persons to entertain some degree of suspicion, nevertheless falls short of establishing a prohibited motivation by a preponderance of the evidence.

cc:
Alan S. Brostoff, Attorney for Complainant
Edward F. O'Donnell, Jr., Attorney for Respondent

Appealed to Circuit Court. Affirmed March 31, 1998. Appealed to the Court of Appeals. Affirmed, unpublished per curiam decision, May 12, 1999.

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Footnotes:

(1)( Back ) Complainant's choice of words in repeatedly describing Reames as a "fugitive" who has "fled", connotes criminality. The commission is in no position to say, whether this connotation was understood and intended by the author of the brief, but it notes that it can see no basis in this case for any suggestion that Reames engaged in any criminal conduct.

(2)( Back ) On several occasions, the Complainant refers to these as "recommended" findings. This is incorrect. Some time ago, the hearing examiners of the ERD issued "recommended" decisions which were then reviewed as a matter of course by the Industrial commission, whose decisions then became the final decisions of the Department of Industry, Labor and Human Relations (DILHR). Since 1977, however, when DILHR became a cabinet-level agency headed by a secretary and the Labor and Industry Review commission was created, the decisions of hearing examiners of the ERD under the Fair Employment Act have been the final decisions of DILHR. They are reviewed by LIRC only if a petition for review is filed.

(3)( Back ) The commission specifically notes that it agrees with the Administrative Law Judge's analysis of the perceived handicap issue, and it believes that analysis answers completely all of the arguments made in Complainant's Briefs to the commission to the effect that Respondent must have believed that he was handicapped. The commission sees no need to belabor this rationale, especially since Complainant has not himself grappled with it but has contented himself with repeating the same faulty argument that the Administrative Law Judge found unconvincing.

uploaded 2001/04/17