RAMON SALINAS, Complainant

RUSS DARROW GROUP, Respondent

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.

Based on its review of this matter, and for the reasons stated in the Memorandum Opinion below, the commission issues the following:

The decision of the administrative law judge issued on June 27, 2007, is set aside, and this matter is remanded to the Equal Rights Division for hearing on the issue of probable cause.

Dated and mailed August 31, 2007
salinra . rpr : 115 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

• During discussions of prehearing matters, the complainant (Salinas) had made several misrepresentations to the ALJ; 
   
• Salinas did not respond to discovery requests in a timely manner; 
   
• Salinas failed to file a witness list or copies of exhibits at least 10 days prior to the Monday, June 4 hearing date. 
   
• On May 30, respondent (Darrow) filed a motion to dismiss, asserting that, given the evidence Salinas planned, and would be permitted, to offer at hearing, he would be unable to prove the theory of his case, i.e., that the positive drug test which resulted in his discharge from a temporary position, and his ineligibility for a permanent position, was caused by his hepatitis and diabetes disabilities or the medications he had been prescribed to treat them. 
   
• On Sunday, June 3, Salinas faxed a request to the ALJ and to Darrow requesting postponement of the June 4 hearing due to an "emergency medical problem."

Both parties appeared at the June 4 hearing. Salinas presented a medical slip signed by a physician dated Friday, June 1, stating that he was "disabled" as the result of "urinary urge incontinence" and "irritable overactive bladder," and was undergoing further testing at that time. According to Salinas, beginning on Friday morning, this condition had caused bleeding in his colon, and he was scheduled for a colonoscopy on June 6 as a result.

The ALJ, noting that, contrary to representations Salinas made in his request for postponement, there was no medical emergency and he was not bedridden, concluded that, at most, Salinas would require more frequent restroom breaks in order to participate in the hearing, and denied his request for postponement.

In addition, the ALJ, after determining that Salinas had no competent medical evidence to offer, and would be unable to prove the theory of his case without such evidence, granted Darrow's motion to dismiss.

Denial of postponement request

With respect to ERD hearings, Wisconsin Administrative Code § DWD 218.18 provides in relevant part as follows:

(2) POSTPONEMENTS AND CONTINUANCES. All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.

The Wisconsin Fair Employment Act (WFEA), like all remedial statutes, strongly favors providing a complainant full and fair opportunity to prove his case at hearing. This opportunity would be compromised, of course, if a complainant is significantly hampered by a medical condition.

If Salinas had simply relied upon his faxed letter in requesting the postponement, the ALJ's denial would have rested on firmer ground, particularly considering Salinas's lack of diligence and honesty throughout these proceedings. Even then, however, the wiser course of action would have been to delay the proceedings and provide Salinas the opportunity to provide corroborating medical support for his request.

However, Salinas did not rely solely upon his letter but also presented a recent note from a physician to the effect that he was, as of the previous Friday, disabled by incontinence and an overactive bladder. This should have prompted the ALJ to postpone the proceedings for the three weeks requested by Salinas. Even though the medical note does not state or imply that participating in the hearing could exacerbate Salinas's medical condition (see, Casetta v. Zales Jewelers, ERD Case No. CR200204189 (LIRC June 25, 2004)), it is certainly implicit from the note that Salinas's medical condition could compromise his ability to fully attend to, and participate in, the hearing process. The ALJ, to preserve the integrity of the proceedings, and in recognition of Salinas's lack of diligence, could have ruled that the parties would not be permitted to file any additional list of witnesses or copies of exhibits prior to the rescheduled hearing date.

Motion to dismiss

Dismissal of a complaint prior to hearing is appropriate where, even if the facts alleged by the complainant were proven, they would not amount to a violation of the WFEA. See, Sabol v. State of Wisconsin, ERD Case No. CR200303174 (LIRC Jan. 31, 2006). Conducting such an analysis involves simply looking at what the complainant asserts he will prove. See, Alvey v. Briggs & Stratton, ERD Case No. 8951036 (LIRC Nov. 27, 1991). Such a dismissal should only be issued in cases where, based upon the assertions in the complaint, there is simply no way the complainant could prevail. See, Jackson v. MATC, ERD Case No. 200103304 (LIRC July 16, 2003); Reddin v. Neenah Joint School District, ERD Case No. CR200301251 (LIRC Aug. 24, 2004). The complainant should not have to make an offer of proof prior to hearing in order to withstand dismissal on this basis. See, Reddin, supra.

Here, the complainant alleges that he was discriminated against based on his disabilities of hepatitis and diabetes because these conditions, or the medications prescribed to treat them, caused the positive drug test which resulted in his discharge from a temporary position and his failure to be hired for a permanent one. If proved, this allegation could establish a violation of the WFEA, i.e., the adverse actions could be viewed as having been taken "because of" the complainant's claimed disabilities.

In addition, the complainant alleges that, because of his disabilities of hepatitis and diabetes, the respondent did not fairly credit or investigate his explanations that he never took drugs and that his positive drug test resulted from medications prescribed to treat his health conditions. This allegation, if proved, could also establish a violation of the WFEA.

To require Salinas not only to state a cognizable claim, but also to disclose prior to hearing what proof he intends to offer and to have the ALJ assess whether this proof will be sufficient to sustain his burden, goes beyond the authority of an ALJ to dismiss a charge for failure to state a claim. Such an approach would permit an ALJ to avoid the due process safeguards inherent in the administrative hearing process by deciding the merits of a contested case without an evidentiary record.

Due process requires remanding this matter to provide Salinas the opportunity to prove his case at hearing.

cc: Attorney Jacquelynn A. Ruiz

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