Wis.LIRC ER Decision: Lee, Jacqueline et ano. - August 12, 2003 - Procedure - Where ALJ made comments off the record, well before end of respondent's case in chief, indicating he had already reached conclusion on the central credibility issue presented in the case, LIRC could not rely upon ALJ's credibility or demeanor impressions in deciding case, and it remands for new hearing before different ALJ

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

JACQUELINE K LEE, Complainant

JENNIFER N STARK, Complainant

FITZPATRICK LAW OFFICE LLP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. 199802244, 199802424

ORDER

Pursuant to Wis. Stat. § 111.39(5)(b), the commission sets aside ALJ Olstad's October 17, 2002, decisions in these cases, and remands these matters to the Department of Workforce Development, Equal Rights Division, for a new hearing and decisions by a different administrative law judge on the complaints, including all substantive and procedural issues.

Dated and mailed August 12, 2003
leejacq . rpr : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The administrative law judge admits that he made the extra-record comments alleged by counsel for respondents. In these comments, which were made well before the conclusion of the respondents' case in chief, the administrative law judge stated that he had essentially reached a conclusion on the central credibility issue presented by the matters at issue. If this central credibility issue could be resolved by the commission solely by examining the evidence of record and deciding which parties' version of events this evidence supported, the commission would do so by conducting a thorough and independent review of the hearing transcript and exhibits. However, as is often the case when sexual harassment issues are raised, determining whether the alleged victim(s) or the alleged perpetrator here is the more credible necessarily relies not only upon a review of the hearing transcript and exhibits but also upon an assessment of their demeanor and that of their witnesses at hearing. See, e.g., Brye v. Brakebush Brothers, Inc., ERD Case No. 8802413 (LIRC Jan. 11, 1993) (assessment of credibility drawn not only from the content of testimony but also from the manner in which it is given, i.e., demeanor evidence). The commission does not believe that it would be appropriate under these circumstances to rely upon the administrative law judge's credibility or demeanor impressions given his extra-record comments and, for that reason, has decided to remand these cases to the department for hearing and decision by a different administrative law judge.

cc:
Attorney Carol S. Dittmar
Attorney James G. Birnbaum

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