Wis.LIRC ER Decision: Holcomb, Judith - March 25, 1988 - Procedure - Dismissal of a complaint at close of Complainant's case - Caution must be exercised in granting request to dismiss at close of complainant's case - ALJ must be fully knowledgeable of what facts complainant needs to prove in order to prevail and of exactly what evidence has been presented at the hearing - motion erroneously granted here, where the only reasonable inference that can be drawn from the testimony presented thus far is that there was race discrimination

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JUDITH HOLCOMB, Complainant

AMERICAN CONVENIENCE PRODUCTS
DIVISION OF SCOTT HOFFMASTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8651271, EEOC Case No. 260863342

An Administrative Law Judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 26, 1988, dismissing the Complainant's charge of race discrimination in regard to promotion. This decision followed the Administrative Law Judge's earlier ruling (at the hearing) granting the Respondent's motion to dismiss following testimony given by the Complainant. The Complainant filed a timely petition for review of the Administrative Law Judge's decision.

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

MEMORANDUM DECISION

The Complainant, a white female, began employment with the Respondent in March 1981. She was initially employed as a clerk typist in the Customer Service Department, but later worked as a secretary and also as a special printing requirements editor in the Customer Service Department.

According to the Complainant, the Respondent was taken over by Hoffmaster, Inc., during May 1986, and thereafter a reorganization of personnel was instituted. The Complainant was employed as a mail clerk at the time of the reorganization. Sometime during May 1986, the Respondent announced that a Virginia Bracken, a black female, had been selected for a new administrative assistant position. The Complainant had no prior knowledge about the filling of this position. She had previously made it known to Respondent's general manager that she was looking for a better position within the company.

The Complainant believed the duties of the administrative assistant position were similar to the customer service secretary's position, a position she previously held. The Complainant described her qualifications for the administrative assistant position as including the following: employment with the Respondent for five years with a good work record, the fact that she was a fast and efficient worker, the fact that she possessed many years of office experience in all areas of work, possession of a college degree, and the fact that she was well-liked, down to earth and had a good personality. All of the above facts are based upon testimony given by the Complainant.

Although the record shows that the Respondent was prepared to present testimony and evidence in its own behalf, no other testimony or evidence was presented. Instead, the Administrative Law Judge granted the Respondent's motion to dismiss for alleged failure to establish probable cause to believe there had been race discrimination. However, the only reasonable inference that can be drawn from the testimony presented thus far is that there was race discrimination. The Complainant made it known to Respondent that she was seeking another position within the company and her testimony establishes that she was qualified to perform the administrative assistant job duties. Farther, her testimony indicates that she was never considered for the job and that a black female was hired for the job.

Caution must be exercised in granting a request to dismiss at the close of a complainant's case. Before granting such a request, the Administrative Law Judge must be fully knowledgeable of what facts a complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing.

Based upon the foregoing, the decision of the Administrative Law Judge is hereby set aside and the matter remanded for further proceedings and a new decision.

Dated and mailed March 25, 1988

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: The Commission notes that in her petition for review the Complainant has requested an opportunity to be represented by an attorney and to present the testimony of two other individuals. While the Complainant clearly can have counsel represent her at the continued hearing, her ability to present the testimony of additional witnesses must be decided under s. Ind 88.14(1) of the Wisconsin Administrative Code by the Administrative Law Judge.

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cc: Attorney Susan R. Maisa

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