EDWARD HOWARD, Complainant

C D SMITH CONSTRUCTION INC, Respondent

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.

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.

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

Dated and mailed November 30, 2001
howared . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The complainant, who had retained an attorney to represent him, appeared at the hearing on April 26, 2001, without his attorney. He requested a postponement of the hearing, asserting that on the previous afternoon he learned from his attorney that his attorney's paralegal had made a mistake in scheduling and that his attorney could not attend the hearing because he had another case in Wisconsin Dells. The complainant stated that he did not want to appear without an attorney when his opponent had an attorney.

After listening to the parties' arguments the ALJ denied the request to postpone the hearing. The ALJ affirmed the complainant's acknowledgement that any "postponement of the hearing will be granted only for good cause and not for the convenience of the parties or by arrangement of the parties." The ALJ determined, however, that lack of representation was not a sufficient reason under the Equal Rights Division's rules to postpone the hearing since the complainant had ample notice and opportunity to hire an attorney who could be available for the hearing.

The ALJ advised the complainant that he had the option of not going forward with his case, in which case she would dismiss his complaint, going forward with his case or withdrawing his case with the ERD and proceeding under federal law in federal court. The complainant chose to go forward with his case before the ERD. At the close of the complainant's case the respondent moved to dismiss the complainant's complaint on the ground that he had not shown probable cause to believe that race discrimination was the reason for his layoff. The ALJ granted the respondent's motion.

On appeal the complainant requests another hearing on his complaint of discrimination. In support of this request, the complainant argues that (1) there was proper cause for an adjournment of the proceedings "due to the ineffective and non-appearance of counsel at time of hearing"; (2) the ALJ acted improperly and unfairly in the administration of the proceedings; and (3) the ALJ improperly excluded evidence available at the hearing which illustrated the meritoriousness of his claim.

First, with respect to postponement of hearings, Wisconsin Administrative Code § DWD 218.18 provides as follows:

"All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing, except where emergency circumstances arise after the notice of hearing is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys."

(Emphasis added.)

The record shows that on December 28, 2000, the Equal Rights Division sent a notice to the parties informing them that the complainant's case was certified for a hearing. Included in this written notice was the advice that "Parties who expect to be represented by an attorney at the hearing, and have not yet retained one, should do so immediately." On January 26, 2001, the division issued a notice of hearing, scheduling the matter for hearing on April 26, 2001. On March 29, 2001, the division received notice from an attorney that he had been retained to represent the complainant.

The ALJ properly denied the complainant's request for a postponement of the April 26, 2001 hearing, as he had not shown good cause for the request for a postponement. The complainant asserted, as reason for requesting a postponement, that on the day before the hearing his attorney indicated that due to a scheduling mistake he could not attend the hearing because he had another case in Wisconsin Dells. Counsel for the respondent indicated at the hearing, however, that the complainant's attorney had mentioned a possible conflict with the ERD hearing date when the complainant was deposed on April 6, 2000, but stated at the end of the deposition that he believed he had taken care of the conflict and would not need to reschedule the hearing. Counsel for the respondent further stated that he had not heard anything from the complainant's attorney since the deposition. There is no indication that the complainant's attorney ever contacted the ALJ about obtaining a postponement due to a possible conflict with another case. It is difficult to accept the assertion that the complainant's attorney suddenly realized a scheduling mistake on April 25 that prevented him from attending the ERD hearing when he had apparently previously first mentioned a possible conflict with the ERD hearing date to the respondent's counsel on April 6, 2001. The complainant's attorney's non-appearance at the ERD hearing did not constitute an emergency situation that warranted postponement of the hearing.

The complainant complains of his inability to present his claim without the assistance of counsel. However, as noted above, the division had mailed a written notice to the complainant back on December 28, 2000, advising him to retain an attorney immediately if he expected to be represented by an attorney at the hearing. The complainant was provided ample time in which to secure counsel that would be available to represent him on the hearing date. Further, to the extent that the complainant complains of ineffective assistance of counsel, this argument also fails. Inadequate legal representation is not an adequate basis for setting aside an administrative law judge's decision or for granting a new hearing. Patek v. Waukesha Engine Div., Dresser Indus. (LIRC, 08/31/95).

The complainant next argues that the ALJ was antagonistic, interrupted and coerced him to answer questions according to her own standard of rules, and did not conduct the hearing in a fair and impartial manner. A review of the transcript fails to support the complainant's assertions. The transcript shows that the ALJ assisted the complainant in presenting his case by eliciting testimony from him about his employment with the respondent and why he believed various alleged actions by the respondent showed evidence of discrimination. The record does not show that the ALJ was antagonistic, or that she interrupted and coerced the complainant to answer questions according to an improper standard. What the ALJ required of the complainant was that the testimony that he presented be based on his personal knowledge. This was not improper. The ALJ conducted the hearing in a fair and impartial manner.

Finally, the complainant argues that the ALJ improperly excluded evidence available at the hearing which illustrated the meritoriousness of his claim. This argument also fails. The complainant, a construction laborer, claimed that his employment was terminated (i.e., he was laid off work) on November 5, 1999, based on his race and not due to a lack of work as told by the respondent. As support for this claim the complainant asserted at the hearing that the respondent was continuously hiring white workers while it was continuously laying off black workers, and referenced documents titled "Monthly Remittance Report-Milwaukee Building Trades Benefit Fund." The complainant argues on appeal that these documents should have been admitted as evidence by the ALJ as a hearsay exception under Wis. Stat. § 908.03(6) (Records Of Regularly Conducted Activity).

Wis. Stat. § 908.03(6), however, provides a hearsay exception for records, reports, etc., "made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian, or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness." (Emphasis added.) The complainant was given the opportunity, but was unable to lay the proper foundation for the admission of these documents under section 908.03(6), Wis. Stat. The complainant conceded that he had not created the documents, and could only state that the documents were provided to him by his union and were allegedly sent to the union every month.

The complainant has argued that Dennis Forstner, the respondent's superintendent of construction, who was present at the hearing could have layed the foundation for the Monthly Remittance Reports. However, Forstner was not called as a witness, nor was there any evidence in the record that indicates Forstner had ever seen the remittance reports, or that he had any understanding as to what they showed or how they were created.

But even if the Monthly Remittance Reports could have been admitted they simply fail to support the complainant's claim of race discrimination. What the reports show are the names of several employees, the hours of regular time worked, the hours of overtime worked and their vacation pay. What is most significant, however, is what the reports fail to explain. For example, these reports fail to explain whether these employees worked on a specific project, whether they are employees from several different projects, whether they are employees who worked the same project as the complainant, or whether they are employees with a similar or differing skill-set as the complainant. In addition to laborers, heavy equipment operators, carpenters and electricians were among the individuals employed by the respondent. The complainant himself, of course, was not responsible for the hiring and termination decisions. Furthermore, he conceded that he had no personal knowledge as to why the employment had ceased for the black employees he asserted had been terminated.

Based upon the foregoing, the complainant's request for another hearing is denied. The ALJ's decision dismissing the complaint in this matter is affirmed.

cc: 
Attorney Lawrence P. Zieger
Attorney Daniel A. Kaplan

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

uploaded 2001/12/06