780 Reconsideration, rehearing

In order to justify a reopening of a hearing on the basis of newly discovered evidence, it must be shown that the evidence is strong enough to reverse or modify the Administrative Law Judge's decision and that such evidence could not have previously been discovered by due diligence. In her petition for Commission review, the Complainantfailed to describe what evidence she sought to present, making it impossible to evaluate its strength, and failed to explain that it was newly discovered evidence that could not have been discovered by due diligence. There are no grounds, then, for remanding this case to take newly discovered evidence. Delgado v. Saint Gobain Performance Plastics Corp. (LIRC, 11/29/13).

The Respondent failed to provide the Complainant with copies of evaluations of potentially similarly-situated employees in response to a request for production of documents, based on the explanation that the documents were not in the Respondent’s possession. The burden is on the party resisting production to prove that compliance is not possible because of non-possession of documents. The ALJ misallocated the burden of proof by requiring the Complainant to prove that the Respondent had possession of the documents. Reversal or remand is not required, however, because the ALJ’s error did not prejudice the Complainant. In weighing the prejudicial effect of a mistaken procedural ruling, the error must be placed in the context of the evidence actually presented in the case. The Complainant failed to show that his situation was similarly situated to that of the employees who were the subjects of the evaluations sought by the Complainant in discovery, and failed to present other evidence raising an inference of discriminatory motive. Obasi v. Milwaukee Sch. of Eng'g (LIRC, 10/14/13).

Where it is alleged that the actions of an attorney adversely impacted the party who retained the attorney in a fair employment hearing, the Commission has consistently held that the actions of the attorney do not provide a basis for setting aside the ALJ’s decision or granting further hearing. It is more equitable to allow the adverse consequences to fall on the shoulders of the party who has chosen the attorney, than on the adversary or other litigants. Ewing v. Kohl’s Dept. Stores (LIRC, 07/22/13).

Actions by a party’s attorney do not provide a basis for setting aside an ALJ’s decision and granting a further hearing. Burt v. Skaleski Moving & Storage, Inc. (LIRC, 04/8/13).

An Administrative Law Judge has no authority to modify a decision once the 21-day period for petitioning for review by the Labor and Industry Review Commission has expired. However, an Administrative Law Judge may modify a decision if the period for petitioning for Commission review of that decision has not yet run and if no petition for Commission review has yet been filed. In this case, the Respondent submitted a “motion to re-open proceedings” to the Equal Rights Division several months after the Administrative Law Judge’s decision had been issued. The Administrative Law Judge appropriately referred the matter to the Labor and Industry Review Commission so that it could determine if the motion should be considered as an attempt to petition for Commission review of the ALJ’s decision.Treige v. Servicemaster Clean (LIRC, 06/25/10).

Neither the Wisconsin Fair Employment Act nor the administrative rules of the Equal Rights Division allow an Administrative Law Judge to entertain requests for reconsideration. In this case, the Administrative Law Judge dismissed the complaint for the Complainant’s failure to comply with discovery requests. When the Equal Rights Division received subsequent correspondence from the Complainant asking that consideration be given as to whether or not he had timely responded to the discovery requests, the Equal Rights Division should have treated the correspondence as a petition for review, rather than as a request for reconsideration. No statutory or administrative authority currently provides the Administrative Law Judges in the Equal Rights Division with the ability to reconsider or take further action on a decision they have issued (even within twenty-one days of the mailing of that decision when no petition for review has been filed). Nabors v. Kelly IT Resources (LIRC, 10/06/06).

An administrative re-hearing will be granted only on the basis of material error of law or fact, or newly discovered evidence which is sufficiently strong to reverse or modify the order, and which could not have been previously discovered by due diligence. A re-hearing was not granted in this case, where the Complainant did not contend that the expert medical evidence she wished to present was “newly discovered,” but rather that the evidence would have been presented at the hearing had her original attorney properly presented her case. Patek v. Waukesha Engine Div., Dresser Indus. (LIRC, 08/31/95).

The Respondent's request for further hearing based on its allegation that it did not receive the notice of hearing was denied where LIRC could infer that the Respondent received the notice of hearing. The file indicated that the notice was sent to the Respondent, and was not returned by the post office. In addition, the Respondent's counsel filed an answer to the complaint, which permitted the inference that the Respondent received the notice since the Respondent's counsel had not yet filed a notice of retainer and had not been mailed a notice of hearing. Rogers v. FASTOP I (LIRC, 10/21/92).

The Complainant's assertion in a petition for review of an Administrative Law Judge's decision that her attorney failed to provide her with proper legal representation was not an adequate basis for setting aside the Administrative Law Judge's decision or for granting a rehearing. Neuberger v. Twin Cities Storm Sash Co. (LIRC, 01/22/92)

A misunderstanding by a party as to the scope of the proceeding is not a sufficient basis upon which to grant a petition for rehearing. Beaverson v. DOT (Wis. Pers. Comm'n, 11/19/90).

The case was remanded for rehearing where a portion of the Complainant’s testimony was not recorded. Krenz v. Lauer's Food Mkt. (LIRC, 09/27/90).

The Personnel Commission lacks the authority to reopen a contested case which was resolved and dismissed with prejudice two years earlier based upon a claim by the Complainant that the Respondent has been unable or unwilling to fulfill the terms of the settlement agreement upon which the case was resolved. Krueger v. DHSS (Wis. Pers. Comm’n, 01/10/90).

At the commencement of the hearing, the Complainant informed the Administrative Law Judge that his attorney was unavoidably delayed in returning to Wisconsin from out of state. The hearing proceeded and the Complainant presented his own testimony. The Administrative Law Judge then granted the Respondent’s motion to dismiss. The subsequent motion to vacate the proceedings filed by counsel for Complainant was without merit. Stoffel v. Briggs & Stratton (LIRC, 09/20/89).

The Complainant's claim that his attorney provided inadequate representation at the hearing is not a basis for reversing the Administrative Law Judge’s decision or for ordering further hearing on appeal. McCabe v. All-Car Automotive (LIRC, 07/31/89).

The Complainant appeared at the hearing in person, without an attorney, and after hearing, the Administrative Law Judge dismissed the complaint. In his petition for review, the Complainant requested further hearing so that he might engage an attorney and witnesses to make a full presentation of the facts. Noting that the Complainant had a full and fair opportunity to present his case, and could have engaged the services of an attorney to prepare and present his case for hearing had he desired, and that the fact that he did not do so was his own decision, the Commission declined to order reopening of the hearing. Reykdal v. County of Bayfield (LIRC, 09/30/88).

The Commission will grant a “rehearing” on one of its decisions only on the basis of some material error of law, some material error of fact, or the discovery of new evidence sufficiently strong to reverse or modify the Commission’s Order and which could not have been previously discovered by due diligence. An argument that a rehearing is necessary because of a party’s attorney’s failure to adduce all relevant evidence, and that such evidence not presented constitutes new evidence, fails to constitute a basis for granting a rehearing. Zurawski v. Dana Corp. (LIRC, 05/06/88).

In order to justify an order for further hearing based on newly discovered evidence, a Complainant must show that the request for such an order is based on new evidence sufficiently strong to reverse or modify the Administrative Law Judge's decision, which could not have been previously discovered by due diligence. Whipp v. DePaul Rehab. Hosp. (LIRC, 02/24/88).

The Complainant filed a letter with the Commission which stated that he wished to withdraw his complaint, and the Commission dismissed the charge. Several months later, the Complainant requested that his original charge of discrimination be reinstated, on the ground that he had withdrawn his original charge as part of a settlement agreement but that the settlement agreement had been breached. The Commission only has jurisdiction to reopen the case on a petition for rehearing if the request is filed within 20 days of the date of the order. Therefore, the Commission lacked authority to reopen the matter. The Commission does not have express or implied authority to enforce settlement agreements. Haule v. UW-Milwaukee (Wis. Pers. Comm’n, 8/26/87).

It was error for an Administrative Law Judge to vacate and remand for reconsideration and reinvestigation a matter in which an initial determination of probable cause had already been issued. Binder v. Nercon Eng’g & Mfg. Co. (LIRC, 07/23/87).

Treating the Complainant’s petition for review, which argued that additional information was now available to support his case, as a request for further hearing to present additional evidence, the Commission denied the request. The evidence, which could potentially provide a basis for a finding that the Complainant was handicapped, could have been presented at the hearing already held. Additionally, it would not support an inference that the Respondent knew of the handicap at the time of the discharge or that the handicap played a part in the decision. Since this would not change the outcome of the Complainant’s case, there was no reason to remand for further hearing. Braggs v. Pabst Brewing Co. (LIRC, 04/29/87).

A Complainant's claim of dissatisfaction with her attorney’s handling of her case does not require that the dismissal of her complaint after hearing be reversed or that she be given a new hearing. If the Complainant’s attorney did mishandle her case, her remedy would be against her attorney in the form of a malpractice suit. Feaster v. Paul A. Laurence Co. (LIRC, 04/22/87).

A trial court order remanding the matter to the hearing examiner for the presentation of additional evidence was properly vacated because the claimed newly discovered evidence was not such as to create a reasonable certainty that, if introduced and considered, the moving party would be successful in challenging the prior decision. Although the claimed new evidence here arguably impeached the credibility of several witnesses on minor points, it did not establish any basis for believing that the finding of no discrimination would be altered. Welch v. LIRC (Ct. App., District III, unpublished opinion, 06/24/86).

Where the employer agreed to holding the hearing one day early, and did not raise any objection to the change in hearing date until after an unfavorable decision was received from the examiner, the Commission did not err in refusing to grant a motion to remand the matter for further hearing. Consol. Papers v. LIRC (Ct. App., Dist. IV, unpublished opinion, 04/17/86).

Alleged improper ex parte communication between the examiner and a party does not justify rehearing where the other side failed to protest in a timely fashion and did not present supporting affidavits. Stewart v. St. Croix County Highway Dep't (LIRC, 02/27/85).

A party is not entitled to a rehearing without showing that it was not possible to present all the relevant evidence at the hearing, or that new evidence had become available which was not previously known or available. The fact that a party was unrepresented at the hearing is not sufficient grounds for granting a rehearing. Delaney v. Consolidated Communications (LIRC, 09/06/84).

An administrative rehearing will be granted only on the basis of material error of law or fact, or newly discovered evidence which is sufficiently strong to reverse or modify the order, and which could not have previously been discovered by due diligence. Bodensack v. Milwaukee Area Tech. College (LIRC, 08/08/78).

Where a hearing examiner orally granted the employer’s motion to dismiss a race complaint, but stated he might reopen the case later, he continued to have subject matter jurisdiction over the case until his recommended decision was issued and he could schedule another hearing. Further, even if the hearing was closed, the examiner was not precluded from granting a motion to reopen the hearing despite the provisions of Section Ind 88.09(3), Wis. Adm. Code, which states that motions not made at the hearing shall be decided by DILHR. State ex rel. A.O. Smith v. DILHR (Nickols) (Dane Co. Cir. Ct., 08/24/77).

Rehearing was granted where the stenographic record of the hearing was lost. Hill v. Kitchen Reddy Foods (DILHR, 04/17/75).