751 Generally

The Complainant failed to establish that the ALJ in a hearing on the merits ruled against him in retaliation for his having appealed a previous no-probable-cause decision by a different ALJ. The Complainant also failed to establish bias or abuse of discretion by the ALJ in his ruling changing the hearing date, his declining to sanction the Respondent for not filing a timely answer, and his terminating the Complainant’s cross-examination of a witness because of the Complainant’s breach of civility toward the witness. But even if the last ruling exceeded the ALJ’s authority, it did not deprive the Complainant of a fair opportunity to present his case, and therefore would not be grounds for reversal. Vaserman v. Lakeshore Med. Clinic, Ltd. (LIRC, 10/30/15), aff'd. sub nom Vaserman v. LIRC, (Milwaukee Co. Cir. Ct., 6/3/16)

The mere fact that the administrative law judge may have engaged in a conversation with some of the Respondent’s witnesses prior to the hearing is not evidence of improper ex parte communications. Young v. County of Milwaukee (LIRC, 03/19/15).

The Complainant’s assertion that the Administrative Law Judge was supposed to provide the information in the case file at the hearing was rejected. The ALJ will only consider evidence presented at the hearing. Robinson v. Pfister, LLC (LIRC, 04/09/10).

The fact that the Administrative Law Judge started the hearing by making sweeping rulings about what evidence was “relevant” to the case made it clear that as far as he was concerned the slate was not blank and that, instead, he had brought to the hearing a well-formed and predetermined idea about what the facts of the case were. This created a significant appearance of unfairness. It is not possible for a judge to make informed and non-arbitrary rulings about what evidence may or may not be relevant in a case unless and until the judge has some idea about what the facts of the case are, or what they are claimed to be. Burton v. United Gov’t Serv. (LIRC, 03/02/10).

It is not the Administrative Law Judge’s responsibility to conduct an investigation into the facts of the case. The Administrative Law Judge’s job is to consider the evidence presented by the parties at the hearing and, based upon that evidence, to decide whether the Complainant has met his or her burden of establishing a violation of the Wisconsin Fair Employment Act. Stumpf v. Goeden Transport (LIRC, 12/23/09).

It is the role of the Administrative Law Judge to assess whether a Respondent honestly believes the reasons that it has advanced for a disciplinary action or whether those reasons are a pretext for discrimination. It is not the role of the Administrative Law Judge to supply post hoc a reason the Respondent never thought to advance. To the extent that the ALJ decided the Complainant’s retaliation claim in this case on a basis never previously disclosed to her nor litigated by the parties at the hearing, this was improper. Gephart v. DOC (LIRC, 11/18/09).

The Equal Rights Division routinely provides the parties with a copy of its rules prior to hearing, along with information on how to access a copy of the Equal Rights Division Decision Digest. Further exposition by the Administrative Law Judge with respect to hearing procedures and legal standards prior to the hearing is neither necessary nor appropriate. Cappelletti v. OceanSpray Cranberries (LIRC, 02/15/08).

Factors to be considered in determining whether an Administrative Law Judge adequately protected the rights of a party not represented by counsel include: (1) whether there was a full opportunity for the unrepresented party to develop his case on direct and cross examination; (2) whether a full and fair hearing was provided; (3) whether it was clear that the party had notice of the issues to be considered at the hearing and an opportunity to present evidence on those issues; (4) whether the unrepresented party understood and was able to hear and participate in the hearing and understand the evidence offered; and (5) whether the Administrative Law Judge was impartial. Ramada Inn v. LIRC (Eau Claire Co. Cir. Ct., 06/03/03).

Chapter 227.46(1)(e), Stats., provides that hearing examiners may regulate the course of the hearing. Clark v. Plastocon (LIRC, 04/11/03).

The hearing examiner was not obligated to elicit testimony from a Respondent where the Complainant was given ample opportunity to do so at the hearing, and appeared to understand that no further testimony could be presented after the hearing was closed. Heinz v. JoJo’s Rest. (LIRC, 04/18/84).

An unrepresented Complainant is not entitled to have the hearing examiner act as her attorney, but only to assist her by explaining matters of evidence and procedure. Cole v. Univ. of Wis. (Wis. Pers. Comm’n, 01/13/81).

An examiner should be commended rather than criticized for adducing necessary jurisdictional evidence for the record even after the employer had moved to dismiss upon completion of the Complainant’s case. State ex rel. Badger Produce v. MEOC (Dane Co. Cir. Ct., 09/02/80).

There is no requirement that DILHR notify the parties who the hearing examiner will be prior to the hearing. Carignan v. Schlitz Container (LIRC, 06/22/79).

An employee's contentions that the hearing examiner failed to assist him and that he was denied due process because of his lack of fluency in English were not supported by the record. It was discretionary with the hearing examiner whether or not to appoint an interpreter for a Complainant. Kropiwka v. DILHR, 87 Wis. 2d 709, 275 N.W.2d 881 (1979).

DILHR may delegate its authority to administer the Act without the need for official action, and the departmental hearing notice was sufficient to apprise an employer that a hearing examiner had been delegated authority to hear the evidence and judge the merits of a discrimination complaint. State ex rel. G. E. v. DILHR, 68 Wis. 2d 688, 229 N.W.2d 597 (1975).