STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

NANCY A KORMANIK, Complainant

WOODLAND HEALTH CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199604795, EEOC Case No. 26G970252

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.

DECISION

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

Dated and mailed: June 8, 1998
kormana.rsd : 164 : 6

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the complainant's attorney argues that the administrative law judge's decision is defective in that it was not based on pertinent information supplied to him by the Equal Rights Officer or the complainant regarding her discharge and replacement by a younger person. Specifically, the complainant's attorney contends that the respondent failed to offer any "counter proof" as to the age of the complainant's replacement. This argument is without merit. The information which the complainant provided to the department's Equal Rights Officer is not part of the hearing record and cannot be considered by the administrative law judge or the commission. While at the hearing the complainant did assert that after her discharge she was replaced by a younger individual, she was unable to present any competent nonhearsay evidence on this point. Moreover, even if the complainant had established that she was replaced by someone younger than she, for the reasons set forth in the administrative law judge's decision and memorandum opinion, the commission nonetheless would see no reason to believe that the complainant's age was a factor in the respondent's decision to discharge her. Accordingly, the dismissal of the complaint is affirmed.

cc:
Michael T. Sheedy
David B. Kern

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