769 Miscellaneous

A new hearing was ordered where the ALJ prevented the pro se complainant from presenting all of her evidence and appeared to have prejudged the case. Ogboni v. MATC (LIRC, 11/29/23).

Dismissal of the complaint as a sanction for disruptive conduct at the hearing is not permissible. The administrative law judge may regulate the hearing, but due process requires that the Complainant be given an opportunity to complete the hearing and that he receive a decision on the merits of the case. However, an administrative law judge may reasonably infer that a party engaging in disruptive or harassing conduct has completed his testimony and may move on to the next phase of the hearing. In the event a Complainant is unable to restrain himself or herself during the presentation of the Respondent's evidence, the administrative law judge may, after providing the Complainant with a clear warning, direct a Complainant to leave the hearing room while the hearing continues until such time as the Complainant is able to comport himself or herself appropriately. Vaserman v. Hayat Pharmacy (LIRC, 01/10/20).

In a “split” case, in which part of the complaint is before an administrative law judge on the issue of probable cause while another part is awaiting decision on the merits, the administrative law judge assigned to the probable cause hearing may not dismiss the entire complaint based upon the Complainant’s failure to appear at the hearing, but only those portions that are pending before him or her. Birmingham v. Capital Finishing, LLC (LIRC, 07/31/18).

A Complainant’s opportunity to challenge the credibility of a witness is through cross-examination at the hearing and not through a “motion for perjury.” Rosneck v. UW Madison General Library System (LIRC 08/30/17), aff’d sub nom. Rosneck v. LIRC (Dane Co. Cir. Ct., 05/11/18), aff’d (Ct. App., Dist. IV, unpublished, 07/3/2019).

Where at the hearing the Complainant was not asked to explain any discrepancies between his testimony and what he wrote on his complaint form, and was not given an opportunity to provide an explanation for any apparent inconsistencies between the two, the Commission would not rely on the complaint form to impeach the Complainant’s credibility. Hopson v. Actuant Corp. (LIRC, 05/8/14).

The Respondent’s motion to dismiss was properly granted where the Complainant abruptly left the hearing without presenting any evidence. A Complainant bears the burden of proof. The Complainant’s failure to present any evidence establishes as a matter of law that there has been a failure of proof. Robinson v. Schlossmann’s Imports (LIRC, 05/31/12).

An Administrative Law Judge may require a party to provide competent medical evidence to support its request for relief from an order on the ground of illness. However, there is no absolute requirement that a party requesting relief from an order on the ground of illness must provide medical evidence in support of that request. Johnson v. Roma Pizza II (LIRC, 02/25/09).

A claim that a person has committed perjury is a criminal matter and, consequently, it is a matter over which neither the Equal Rights Division nor the Labor and Industry Review Commission has any authority. Bedynek-Stumm v. State of Wisconsin (LIRC, 02/08/08).

The concept of conforming the pleadings to the proof is not applicable in administrative proceedings under the Wisconsin Fair Employment Act. Hanson v. DOT (LIRC, 06/14/05).

A party who disagrees with rulings rendered by an Administrative Law Judge prior to hearing is required to proceed to hearing, preserving her objections to such rulings on the record for review on appeal. If the Complainant instead refuses to proceed with the hearing due to her objections to the Administrative Law Judge’s rulings, and her complaint is dismissed as a result, the Complainant is deemed to have waived her objections to these rulings. Casetta v. Zales Jewelers (LIRC, 06/14/05).

While secs. 111.321 and 111.325 of the Wisconsin Fair Employment Act provide that no “person” may engage in an act of employment discrimination, the Act also expressly provides for employer liability for any financial remedies ordered as a result of a violation of the law “by an individual employed by the employer.” Sec. 111.39(4)(c), Stats. Thus, individual supervisors acting as agents of the employer should not be named as separate Respondents in discrimination complaints. Yaekel v. DRS, Ltd. (LIRC, 11/22/96).

A Complainant was granted all of the procedural due process rights to which he was entitled in an administrative proceeding where he had an opportunity to present his case before an impartial Administrative Law Judge and to present witness testimony and documentary evidence on his behalf. Further, he was given ample notice to prepare for the hearing and to secure legal representation if he so desired. Jones v. Willowglen Acad. (LIRC, 03/28/95).

Where the Complainant elected to leave the hearing without explanation prior to the conclusion of her testimony, the Department properly dismissed her complaint because the evidence in the record did not support a finding of probable cause. LIRC declined to remand the matter for further hearing where the Complainant did not demonstrate that she had been unable to proceed with the hearing as originally scheduled. Hale v. Hearthside Rehab. Ctr. (LIRC, 02/08/94).

A Complainant continuously impeached his own credibility by asserting that he suffered from a mental illness which limited or destroyed altogether his ability to actually recall the alleged events in question. Jackson v. City of Milwaukee (LIRC, 10/28/93).

Allegations on appeal that the Administrative Law Judge appeared to be sleeping during the hearing must fail where (1) there was a disputed issue of fact as to the occurrence of the conduct, (2) the issue was waived by counsel’s failure to make a timely objection to the Administrative Law Judge, and (3) even if true, the record was transcribed and the ALJ’s decision was rendered on the complete record and briefs. Gronning v. Sch. Dist. of Viroqua Area (LIRC, 07/28/93).

Where the Respondent has not shown that there was undue delay in holding the hearing and where it never objected because the matter was not scheduled for hearing earlier, its argument that it has been unfairly penalized by delays is without merit. Holbrook v. Coffee Systems (LIRC, 01/26/89).

An Administrative Law Judge could properly reject the Complainant’s testimony as being incredible, where the Complainant acknowledged that she suffered from a mental illness which involved “relentless” auditory hallucinations and that she heard her supervisor “talking to her” at home. Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).