NATHANIEL HARRIS, Complainant

M & I BANK, Respondent A

BETH CURLEY, Respondent B

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 September 11, 2003
harrina . rsd : 125 : 9

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This case involves a claim by Nathaniel Harris, a black male, that the respondents violated the Wisconsin Public Accommodations and Amusements Law by giving preferential treatment to some classes of persons because of race. Harris claims that after M & I Bank refused to cash his wife's checks on December 29, 2000, because her account at the bank had been overdrawn and therefore closed, that he offered to pay a $5 non-customer fee to cash his check but was refused service. Following a probable cause hearing on Harris' discrimination complaint, the ALJ issued a decision finding no probable cause to believe the respondents had violated the Wisconsin Public Accommodations and Amusements Law by giving preferential treatment to some classes of persons because of race. Specifically, the ALJ determined that M & I Bank had also refused to cash checks for white customers who had overdrafts at the bank, and that on December 29, 2000, Nathaniel Harris never asked to cash his check.

In his petition for review Harris alleges that the probable cause hearing in this matter was held in violation of his right to due process because M & I Bank branch manager, Elizabeth Curley, was allowed to remain in the hearing room during the testimony of the respondent's witnesses. Further, Harris alleges that there were "noticeable signs of nods, winks, hand games and other body signs" by the respondent's witnesses, which substantially influenced Curley's own testimony. Harris asserts that for these reasons he should be granted a new hearing.

Harris' allegations do not support a showing for the need for a new hearing. Harris' right to due process was not violated because of Curley's presence in the hearing room. While witnesses may be excluded so that they cannot hear the testimony of other witnesses, this does not extend to a party who is a natural person, or to an officer or employee of a party which is not a natural person designated as its representative. Wis. Stat. § 906.15. As a named party, and the M & I Bank designated representative, authority did not exist to exclude Curley from the hearing room during the testimony of the witnesses. Further, the commission has no reason to believe Harris' assertion that there had been "noticeable signs of nods, winks, hand games and other body signs" by the respondent's witnesses. Surely the ALJ would have been cognizant of such "noticeable" gestures had they occurred.

Harris has also alleged that Curley was improperly allowed to testify to facts contained in notes obtained from the testimony of her witnesses and that for this reason he should be granted a new hearing. The respondent strongly denies that Curley had acted inappropriately in any way during the hearing. In any event, Harris' allegation here also fails to justify granting him a new hearing. Jo-Ann Moore, then a personal service banker at M & I Bank, and a black female, was the first person to approach the Harrises on December 29, 2000, after noticing Mrs. Harris trying to cash some checks. Moore was aware that Mrs. Harris' account was overdrawn and that it had been closed. Moore testified that during her encounter with the Harrises her discussion with Mr. Harris related to not cashing Mrs. Harris' checks, and that Mr. Harris did not say a word about cashing his check. Surely, Curley did not need to obtain notes of Moore's testimony that Mr. Harris did not say a word about cashing his check in order to testify that when she (Curley) met with the Harrises on December 29 Mr. Harris never asked her to cash his check. Further, it is clear that the ALJ found Moore and Curley to be credible witnesses.

Additionally, Harris now makes a request for what amounts to a change in venue from the Madison Equal Rights Division to the Milwaukee Equal Rights Division, alleging lack of impartiality and unfair bias by the Madison Equal Rights Division. Harris' request is denied. Harris has made allegations of impartiality and unfair bias on the part of the Madison Equal Rights Division only after receiving the adverse decision on his discrimination complaint. Moreover, his allegations are completely unfounded.

Finally, pursuant to Wis. Admin. Code § LIRC 1.06, Harris "demands" an opportunity for oral argument to present his claim and the issues more clearly. While the commission may grant a written request for oral argument if it determines that an issue would be more clearly presented by oral argument, the commission finds that the record and Harris' written arguments on appeal have already made his claim and the issues presented perfectly clear. Harris' request for oral argument is therefore denied.

cc: H. Robert Kilkelly

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uploaded 2003/09/15