MAUREEN R WIKEL, Complainant

METRO BAR AND CAFE, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. The complainant filed a timely petition for review.

The commission concludes, for reasons stated in the attached Memorandum Opinion, that this matter must be remanded to the Division for further proceedings and therefore issues the following:

1. That the October 20, 2006 decision issued on the complainant's age discrimination claim by the administrative law judge in this matter is set aside, and that a new hearing be held and a new decision be issued on such claim.

2. That the Equal Rights Division conduct an investigation and issue an initial determination as to whether probable cause exists to believe the respondent violated the Act by discriminating against the complainant on the basis of sex as she has alleged in her complaint.

Dated and mailed  May 18, 2007
wikelma . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

First, a remand is required for an investigation and issuance of an initial determination as to whether probable cause exists to believe that the respondent violated the Act by discriminating against Maureen Wikel in her terms and conditions of employment and termination of employment because of her sex. Wikel's complaint allegations were that she was discriminated against in her terms and conditions of employment and termination of employment in violation of the Act on the basis of her age and sex. The initial determination specifically notes that Wikel had included a claim of sex discrimination, but it does not render a decision as to whether or not there was probable cause to believe an act of sex discrimination had occurred. Following the issuance of a no probable cause initial determination, Wikel again specifically asserted that she was discriminated against because of her age and sex but her allegation of sex discrimination has never been addressed.

Second, with respect to the ALJ's decision regarding Wikel's claim of age discrimination, the state of the record does not provide the commission with a basis for proper review. For instance, at the close of the hearing on Wikel's claim of age discrimination, the ALJ stated that "the exhibits will be received". However, what those exhibits were is not clear. Several documents were referenced and discussed during the hearing. Some were marked as exhibits, others were not. There was also testimony given about some of the documents without specifically identifying the particular document. To further complicate matters, the "Exhibit List" form completed by the ALJ shows that three of the documents that were marked as exhibits, were never offered or received as evidence. Further, what is listed on the Exhibit List as "#9" and identified as a "Payroll Report" is not in the file. What is listed as "#11" and apparently identified as "employee incident Report" is shown on the Exhibit List form as being offered and received, but the record (including the document itself) fails to indicate who the author was or when it was written, and thus it is not clear that a proper foundation was ever laid for its admission.

In addition, during the hearing portions of documents asserted to be Wikel's performance evaluations (which were not marked as Exhibits) were read into the record as evidence that she was an unsatisfactory worker. (1)   In particular, comments most critical of Wikel's work performance contained in what was said to be a January 2005 performance review by the respondent's assistant manager [Robert Barry] were read into the record. (2)   Wikel testified that performance reviews usually took a half hour to forty-five minutes, but this review took ten minutes as the assistant manager said he was in a hurry. Wikel testified that the only thing the assistant manager said was that she had to get along with staff better and had to do team work, but the assistant manager did not tell her what he meant and said he was in a hurry, to sign the review. Wikel testified that she asked for a copy of the review because she wanted to read it but was never given a copy. (Indeed, it was Wikel's assertion in other correspondence in the file sent to the ERD that she had been asked to sign performance reviews that had been verbally discussed with her but which she was never given a copy.) Further, Wikel testified that she always got along with the other staff and that no one ever gave her any indication that they were dissatisfied with her work.

Moreover, a number of the findings made by the ALJ are not supported by the record. For instance, the evidence does not support the ALJ's paragraph 4 finding that during Wikel's January 2005 performance review the assistant manager specifically told Wikel she was not doing her side work, such as failing to wipe the base of tables, failing to scrub the walls, failing to pull out the cabinets and vacuuming. There is also no support for the paragraph 6 finding that the average age of the food servers was over fifty.

NOTE: The commission is completely at a loss as to why it is necessary to continually need to reiterate such basic rudimentary standards for procedures with respect to documentary evidence considered at the hearing. The commission finds this extremely frustrating, and it will no doubt also be frustrating to the parties who must bear the additional expense, their additional time and the additional delay before receiving a resolution of this matter.

In an effort to minimize the time necessary to bring this matter to a resolution, the commission trusts that this case will be expedited by the Division.

 

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(1)( Back ) The commission has previously set forth in Reinke v. Pick' N Save Mega Food Centers (LIRC, 09/02/99), and then again found it necessary to reiterate in Wells v. Roadway Express (LIRC, 02/27/01) (both cases involving the ALJ in the current case), the following things necessary for the commission to carry out its statutory responsibility to review decisions of ALJ's "based on a review of the evidence submitted":

1) If documents are used in the course of examination of witnesses and are referred to or discussed in the examination of the witnesses, they should be marked for identification. They should be physically marked either by the administrative law judge, or the court reporter if one is present....If documents are used and referred to at the hearing, even if there is no request by a party to have them marked for identification, the administrative law judge should do so as soon as possible, on his or her own motion, in the interest of the clarity of the record.

2) Once documents have been marked for identification, they should thereafter be referred to by their identifying designation (whether or not other identifying detail is also added). If parties refer to marked documents without using their identifying designation, and the context is not adequate to allow a third party who may later be reading the record to determine what is referred to, the administrative law judge should not hesitate to intervene on his own motion to ask to have the record clarified as to what document is being talked about.

3) All actions taken with respect to documents - particularly marking them for identification, and receiving (or not receiving) them as exhibits - should be taken on the record. If actions are taken off the record, they should be confirmed on the record as soon as the hearing resumes. Actions taken with respect to exhibits should be stated clearly, and with express reference to the identifying designation of the document, so that it will be clear to a third party (such as an ERD Legal Assistant who is preparing a Summary of Proceedings, or to the commission) what action is being taken.

(2)( Back ) The assistant manager did not appear at the hearing.

uploaded 2007/05/21