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

ART RAMIREZ, Complainant

UNITED PARCEL SERVICE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700561, EEOC Case No. 26G970062

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: September 21, 1998
ramirar.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant challenges the administrative law judge's conclusion that Ms. Hammond was not credible in her testimony that she did not receive a copy of the hearing notice. The complainant argues that the administrative law judge's adverse credibility determination was based upon the fact that Hammond represented herself as the complainant's wife when they had not been legally married. The complainant maintains that he and Ms. Hammond considered themselves to be married and that the lack of a formal marriage is not a reasonable basis for denial of the complainant's postponement request. This argument is without merit. The administrative law judge did not draw an adverse credibility inference based upon disapproval of the complainant's lack of a formal marriage, as the complainant's attorney seems to imply in her brief, but because she believed the complainant's witness was deliberately untruthful. In written statements prepared prior to the hearing and at the hearing while under oath Ms. Hammond stated that she was the complainant's wife and that they were married. Although Ms. Hammond had an opportunity to explain that she and the complainant merely "considered" themselves to be married, she failed to do so and the administrative law judge formed the impression that she was being deliberately evasive on this point. Under these circumstances, the administrative law judge could reasonably conclude that Ms. Hammond intentionally misrepresented her marital status and, further, that her untruthfulness in this regard cast doubt upon the general credibility of her testimony as a whole.

Moreover, as was clearly explained in the memorandum opinion, the administrative law judge had other reasons for her adverse assessment of Ms. Hammond's credibility apart from her conclusion that Ms. Hammond lied about her relationship with the complainant. For example, the administrative law judge drew an adverse inference about Ms. Hammond's credibility based on contradictions between Ms. Hammond's version of events and that of Mr. Drinan, the Division's investigator. The administrative law judge also indicated that Ms. Hammond's demeanor at the hearing led her to disbelieve some of her testimony. Thus, the commission is satisfied that the administrative law judge had an adequate basis to disbelieve Ms. Hammond's testimony and that her credibility determination was based upon legitimate factors.

In his petition the complainant also makes the argument that, had he received the hearing notice in September, he could have easily made arrangements to prepare for the hearing or request a postponement, and that no motive was ever articulated as to why he would not have done so had the notice been received. However, there are many reasons why a party might fail to prepare for a hearing or seek a timely postponement, and the lack of evidence in the record regarding the complainant's specific reason or reasons for failing to act expeditiously upon receipt of the hearing notice does not constitute proof that the document was not received.

Finally, the complainant asserts generally that the presumption of receipt is rebuttable and that he successfully countered it. Again, this contention lacks merit. While it is true that the presumption of receipt is a rebuttable one, it can only be rebutted by credible testimony or other competent evidence to the contrary. An incredible assertion of non-receipt is plainly insufficient to overcome the presumption that the complainant did, in fact, receive the hearing notice that was mailed to him at his most recent address on record with the Division. The administrative law judge's order denying the complainant's request for postponement and dismissing his complaint is, therefore, affirmed.

cc: Nola J. Hitchcock Cross
Heidi B. Retzlaff

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