BETTY A. KRENZ, Complainant

LAUER'S FOOD MARKET, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 29, 1990. Respondent filed a timely petition for review by the Commission.

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

That the decision of the Administrative Law Judge of June 29, 1990 be set aside, and that this matter be :remanded for hearing de novo before a different administrative law judge.

Dated and mailed September 27, 1990

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The Commission's conclusion, that the decision must be set aside and the matter remanded for new hearing, follows from the fact that the decision in this case is subject to two serious procedural flaws.

The first flaw, discovered in the course of a review of the hearing tapes in order to evaluate an objection that the Administrative Law Judge's synopsis did not accurately set forth the Complainant's cross-examination, is that there was an inadvertent failure to make a complete record. The Administrative Law Judge turned on his tape recorder at the beginning of the hearing, but then turned it off very shortly thereafter, apparently to go off the record while witnesses subject to a sequestration order were being ushered from the room. According to the synopsis, the hearing continued, with the entry of a number of stipulations of fact followed by the direct examination and cross-examination of the Complainant. However, the Administrative Law Judge had apparently failed to turn his tape recorder on again. When the tape continues after the point at the beginning of the hearing at which the Administrative Law Judge went off the record, it is at a point in the middle of the Complainant's cross-examination.

The second flaw in the decision is that the Administrative Law Judge failed completely to make findings of fact and conclusions of law on an issue that was raised in an amended complaint, addressed in the Initial Determination, mentioned in the Notice of Hearing, and even identified by the Administrative Law Judge in his preface to his findings and conclusions as an issue in the case. That issue is whether the Respondent discriminated against Complainant because of maternity leave, which would constitute sex discrimination under sec. 111.36(1)(c), Stats.

Testimony at hearings on complaints filed under the Wisconsin Fair Employment Act must be recorded or taken down by a court reporter. Sec. 111.39(4)(b), Stats. There was a partial failure to meet that requirement here, and that partial failure was a very significant one, involving as it did what is likely to be some of the most important testimony in any case of discrimination, that being the direct and cross-examination of the Complainant. Adequate review of the decision cannot be conducted consistent with the Statutes and with due process when the testimony on which the decision is based has not been recorded and is therefore unavailable to the reviewer, unless there is a stipulation from the parties adequate to cure the defect. The Commission explored the possibility of obtaining such a stipulation here, asking the parties if they would stipulate that the Administrative Law Judge's synopsis could serve in lieu of the actual record, with respect to the missing parts thereof. The Complainant did not respond to this inquiry. The Respondent made an offer to so stipulate, but only on condition that there also be a stipulation, in which not only the parties, but also the Department and the Commission would participate, to the effect that the Administrative Law Judge's failure to rule on the issues of sex and handicap (1) discrimination constituted a ruling against the Complainant on those issues, which then became final by virtue of the Complainant's failure to appeal.

The Commission concludes that the conditions proposed by Respondent are not appropriate. An administrative law judge is required to make written findings on issues presented by the complaint. Sec. 111.39(4)(c), (d), Stats. It would be contrary to these statutory requirements to conclude that an administrative law judge could render decision on an issue in a case by not making ultimate findings thereon. Furthermore, the Statutes contain no requirement that a petition for review specify the particular parts of a decision that are objected to, and they provide that if "a timely petition" is filed, the Commission may either affirm, reverse or modify the findings or order "in whole or in part." Sec. 111.39(5)(b), Stats. Since the Commission's review jurisdiction is not limited to specific issues mentioned in a petition, it follows that when any party has filed a petition for review, whether or not it is directed only to specific parts of the findings and order, the Commission's jurisdiction extends to all issues presented in the case. Therefore, the Commission would not be inclined to agree with the view that an administrative law judge's failure to make any findings on an issue constitutes a decision against the complainant on that issue and that the Commission is precluded from reviewing that decision if the party against whom it goes does not seek review. In any event, the Commission would not consider it appropriate to "bargain" with parties over the terms upon which an administrative law judge's synopsis will be substituted for the record. If the parties are not willing to enter into such a stipulation, there is no room for "bargaining;" the decision cannot be reviewed.

With respect to the failure of the Administrative Law Judge to make findings and conclusions on the issue of maternity leave discrimination, the incompleteness of the record limits the Commission's alternatives. In a case in which a complete record had been made, but the administrative law judge inadvertently failed to decide an issue, the Commission, which sits as a de novo decision-maker on review of decisions of administrative law judges, could simply supply the missing findings. This option is not available to the Commission in this case, because it does not have a complete record on which to base such findings.

The Commission has decided to remand this matter for hearing de novo, rather than merely for limited supplemental testimony, because of potential difficulties that would be presented if the latter course were followed. If the matter were remanded merely to repeat the examination of Complainant, the possibility would be presented, that Respondent could assert that the Complainant testified to something on remand that was additional to or inconsistent with what she testified to at the original hearing. If the Respondent were not provided with the opportunity to respond to this allegedly "new" evidence, concerns about fairness would arise. Additionally, it would be difficult to even evaluate a claim, that the Complainant's testimony on remand was inconsistent with her testimony at the original hearing, since that original testimony is not accessible to any reviewer. The fairest method, since the Complainant is essentially being given an opportunity to present a significant portion of her case again, is to allow a complete rehearing.

The Commission is directing that a different administrative law judge be assigned this matter on remand, to avoid even the possibility that an argument could be raised, that the Administrative Law Judge was influenced in his decision by testimony of the Complainant given at the first hearing which is not accessible to a reviewer. With a different administrative law judge assigned to the matter, who of course will not have heard the not-of-record testimony of the Complainant at the first hearing, this objection will be foreclosed. If, after the decision, the matter is again. appealed to the Commission, it will be possible to state with certainty that the decision appealed from was rendered solely on the basis of the testimony and evidence in the record of the remand hearing, which will be available to the Commission.

cc: 
Attorney Keary W. Bilka
Attorney Arik J. Guenther

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(1)( Back ) No allegation of handicap discrimination was ever raised in a complaint, investigated, or noticed for hearing in this matter, and it is unclear why Respondent now identifies this as an issue.

uploaded 2004/02/25