762.1 Generally

A written statement cannot substitute for the sworn testimony of a witness. Arrangements to have a witness appear by telephone must be made in advance. Boyd v. Goodwill Indus. of S.E. Wis., Inc. (LIRC, 09/27/19).

The Respondent’s position statement contained an admission that the Complainant’s history of arrests was a partial motivation for its decision not to hire him. The position statement was an admission of a party opponent. It was a statement of assertion of fact offered against a party, qualifying as an admission in two ways: as a “statement by a person authorized by the party to make a statement concerning the subject” (§ 908.01(4)(b)3); and as a “statement by the party’s agent or servant concerning a matter within the scope of the agent’s or servant’s agency or employment, made during the existence of the relationship” (§ 908.01(4)(b)4). Kelly v. Multi-Serve, Inc. (LIRC, 08/13/19).

The Complainant was not required to bring an expert to the hearing in order to present data showing the ages and salaries of various employees. Gabrielson v. Wauwatosa Sch. Dist. (LIRC, 04/05/19).

An Administrative Law Judge’s reliance on an unemployment decision to decide if the Complainant quit or was discharged was misplaced. The issue of whether the separation is characterized as a discharge or a quit has no bearing on the ultimate question of whether there has been a violation of the WFEA. Patton v. Summit Packaging (LIRC, 06/16/14) (unavailable online).

After resting her case at the end of the first day of hearing, the Complainant asked to supplement her case on the second day with additional exhibits and testimony of two additional witnesses. The ALJ properly ruled that the Complainant had missed her opportunity to present this evidence and testimony in any way other than by rebuttal to the Respondent’s case. The ALJ properly indicated that she would decide at the conclusion of the Respondent’s case whether the proposed testimony and documentary evidence would be allowable as rebuttal. Delgado v. Saint Gobain Performance Plastics Corp. (LIRC, 11/29/13).

Expert testimony is mandatory only where the matter at issue is not within the realm of ordinary experience and lay comprehension. In this case, the question of whether earrings for males is a commonly accepted social norm is the type of question which is within the realm of ordinary experience. A decision-maker is not required to ignore his or her personal observations in issuing decisions. Vernon v. Wackenhut Corp. (LIRC, 10/18/11).

One risk of an overly stringent approach to questions of relevance is that, in the event of an appeal of the Administrative Law Judge’s decision, evidence which the Labor and Industry Review Commission might find relevant and might wish to consider will have been excluded from the record, thereby impairing the Commission’s ability to carry out its role as a de novo decision-maker. The procedure followed by an Administrative Law Judge of insisting that offers of proof be made by submission in writing after the hearing was not proper. The generally-accepted practice for making offers of proof is that counsel should be allowed to either make them in question-and-answer form (by asking the witness the questions and getting the answers) or by describing in summary form (also on the record) what the testimony would be. Burton v. United Gov’t Serv. (LIRC, 03/02/10).

Chapter 227, Stats., requires very relaxed rules of evidence for administrative hearings. An Administrative Law Judge is directed to admit evidence of reasonable probative value, and should exclude only evidence that is “immaterial, irrelevant or unduly repetitious,” or evidence that is inadmissible under a statute relating to HIV testing. Neither Ch. 227, Stats., nor the Department’s administrative rules relating to hearings require certified copies of medical records. Rutherford v. LIRC, 2008 WI App 66, 309 Wis. 2d 498, 792 N.W.2d 897.

The Complainant alleged that his discharge was based upon race and that, had he been a white employee, he would not have been discharged for engaging in the same conduct. In support of this assertion, the Complainant attempted to present comparative evidence showing that white employees had engaged in serious misconduct with lesser disciplinary consequences. Comparative evidence is relevant in a disparate treatment case, and the appropriate question is not whether such evidence is admissible, but how much weight it should be given. The Respondent’s belief that the workers to whom the Complainant compared himself were distinguishable from the Complainant went to the strength of the Complainant’s pretext argument. It was not, however, a proper basis for excluding the evidence from the record. Arvin v. C & D Technologies (LIRC, 10/31/08).

The Equal Rights Division is not bound by common law or statutory rules of evidence, including the hearsay rule. However, in this particular case, the medical records which were introduced into the record over the Complainant’s objection were not hearsay because they were not offered to prove the validity of the physician’s medical opinion, but were instead offered to prove that this was information which the physician had provided to the Respondent. Smith v. Mail Contractors of Am. (LIRC, 02/15/08).

In the proper circumstances, the failure of a party to present a material witness for evidence within their control permits an inference against that party. In this case, it was inferred that the Respondent chose not to present the testimony of the individual who decided to discharge the Complainant because it would have tended to show that the reason he had given for discharging the Complainant was not accurate. Cole v. Greyhound Bus Lines (LIRC, 09/16/05).

Pursuant to sec. 227.45, Stats., the Equal Rights Division is not bound by common law or statutory rules of evidence, including the hearsay rule. Stichmann v. Valley Health Care Ctr. (LIRC, 06/14/05).

For there to be a conclusion that an Administrative Law Judge erred by excluding evidence, there needs to be some indication as to what evidence it is claimed could have been presented but for that ruling. An offer of proof is the preferred method of providing that indication. Sasich v. City of Milwaukee (LIRC, 06/18/04). Failure to object to the receipt of evidence in a timely fashion constitutes waiver. Merta v. Johnson Controls (LIRC, 10/30/03).

Although hearsay evidence is admissible at hearing, an ultimate or crucial finding of fact may not be based solely on uncorroborated hearsay evidence. Merta v. Johnson Controls (LIRC, 10/30/03).

An offer of proof should be placed on the record at the time the ruling excluding the evidence is made and there is a request to make an offer of proof. Fauteck v. Sinai Samaritan Med. Ctr. (LIRC, 11/09/00).

The Complainant kept a log in which she made contemporaneous notes about many events which occurred at work. The fact that written notations about alleged discriminatory events occurring at work are made contemporaneously with the events can be something that gives the notations great weight as proof. However, the Complainant in this case chose not to offer the log as evidence supporting her version of the disputed events. The failure of a party to present material evidence within their control permits an inference against such party. In this case, the circumstances justified an inference that the Complainant elected not to offer her log because it would have undercut her testimonial version of a number of material important events. Connor v. Heckel’s, Inc. (LIRC, 09/27/99).

If the Initial Determination is not received into the hearing record, it should not be considered in making factual findings. In any event, the hearsay indication of an investigator that a co-employee of the Complainant told her something would have no greater reliability than any other hearsay testimony. Schanandore v. Roddiscraft, Inc. (LIRC, 06/19/92).

The Administrative Law Judge properly refused to receive the Initial Determination in evidence as an exhibit. The Initial Determination is merely a hearsay document reflecting the conclusions of an investigator made after an ex parte investigation. Henchen v. County of Vernon (LIRC, 09/05/91).

It was improper for LIRC to rely upon the factual findings made in a consent decree when that consent decree was not properly admitted in evidence. The Complainant had agreed to the admission of the consent decree for the limited purpose of (a) showing that a consent decree was issued, and (b) that the Respondent was abiding by the consent decree. LIRC inappropriately relied on factual findings in the consent decree to conclude that the consent decree was justified by an under-utilization of minorities in the Respondent’s workforce. Samolinski v. DILHR (Milwaukee Co. Cir. Ct., 07/03/91).

There is no reported authority in Wisconsin recognizing the appropriateness of calling an attorney as an expert witness on an issue of law which is an issue for the judge in the case. Opinions on a question of law are actually no more than arguments. Arguments should be presented as such, not in the guise of “expert testimony” from attorneys sworn as witnesses. Therefore, the Commission will not consider the testimony of an assistant attorney general who was called as an expert witness on the question of whether the Complainant’s conviction for armed robbery was substantially related to his job as a juvenile correctional worker. Collins v. Milwaukee County Civil Serv. Comm’n (LIRC, 03/08/91).

It is improper for an Administrative Law Judge to rely on matters outside of the hearing record as a basis for a finding of fact. Joseph v. Central Parking (LIRC, 08/20/90).

If the Initial Determination is not received into the hearing record, it should not be considered by the Administrative Law Judge in making factual findings. Joseph v. Central Parking (LIRC, 08/20/90).

Where documents which were given to the investigator are not presented and received into the record, the Administrative Law Judge has no authority to reach into the file to consider those matters. Beach v. Best Buy (LIRC, 10/26/89).

Directly relevant evidence received in another case was properly disregarded by the Administrative Law Judge in reaching a conclusion that the Complainant had failed to prove discrimination, even though the same Administrative Law Judge had found the Respondent to have discriminated against the Complainant in a companion case. Rodgers v. Milwaukee County (LIRC, 09/19/88).

The Division cannot base crucial or essential findings upon hearsay testimony alone. Hunt v. City of Madison (DILHR, 02/11/75).