P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. 200504103, EEOC Case No. 260-2005-06964C

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.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed October 19, 2007
whitmty . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


James Whitmore, a male, filed a charge of discrimination against the respondent alleging that he was subjected to different terms and conditions of employment based on his sex because a female with the same job title was given more supervisory authority. Following a January 16, 2007 probable cause hearing on Whitmore's complaint allegation, the ALJ issued a decision concluding that Whitmore failed to show probable cause to believe that the respondent violated the WFEA by discriminating against him in his terms and conditions of employment because of his sex.

Whitmore filed an appeal from the ALJ's decision, to which he attached numerous documents that he apparently claims are proof the hearing was incomplete because of the lack of this information. Subsequently, in correspondence responding to the respondent's objection that he could not now introduce new evidence which had been available for the hearing in this matter, Whitmore apparently asserts that these documents are not new evidence because he had previously submitted this to the EEOC and ERD during their initial investigations. However, a party is required to present any evidence the party believes will support the party's case at the hearing. A Certification to Hearing notice the ERD sent to the parties on July 18, 2006, stated: "At the hearing, you should be ready to offer testimony and evidence to support your case." Furthermore, an Information Sheet enclosed with the Notice of Hearing mailed to the parties on September 14, 2006, advised the parties that: "By no later than ten (10) days before the date of the hearing, each party must send the other party - and file with the division - a list of any witnesses and copies of any documents they may want to use at the hearing. Any witness or document not disclosed could be barred at the hearing." Whitmore failed to provide notice of any documents (or witnesses) that he intended to use at the hearing (and apparently also had no documents with him at the hearing).

On review, the commission will not consider documents which were not part of the evidentiary record made at hearing. By law, the commission is required to conduct its review based on the evidence submitted and received at the hearing. Section 111.39(5), Wis. Stats. Reinke v. Pick 'n Save Mega Food Centers (LIRC, 01/28/00).

A review of the record evidence in this matter fails to indicate any reason to believe that the respondent discriminated against Whitmore with respect to supervisory authority because of his sex. Accordingly, the commission has affirmed the decision of the administrative law judge.

cc: Attorney Mary Aileen O'Callaghan

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uploaded 2007/10/22