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

PATRICIA R BOWDISH, Complainant

RAPIDS COUNTY MARKET, Respondent A

PAULSONS SUPERVALUE, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199601979, EEOC Case No. 26G961298

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 11, 1998
bowdipa.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that the administrative law judge prejudged her case and denied her a fair hearing. The complainant maintains that prior to her hearing the administrative law judge essentially indicated that, based on what he had read of her file he did not believe she had a case, but that he was obligated to start with a clean slate and that she would have the burden of presenting evidence to him at the hearing. The complainant contends that the administrative law judge's actions left her frazzled and confused about how to proceed. The complainant requests a review of her case or, in the alternative, a new hearing.

The commission has considered the complainant's arguments and has carefully reviewed the hearing record, but sees no reason to take any further action in this matter. The hearing synopsis, which was not prepared by the administrative law judge, but by one of the Division's legal assistants, contains nothing to indicate that the hearing was handled in an other than fair and impartial manner. The complainant was given an opportunity to testify on her own behalf and to present witness testimony, and she availed herself of this opportunity. While the complainant may have felt confused about how to proceed during the hearing, the commission sees no reason to believe that the administrative law judge restricted the evidence the complainant could submit or otherwise hindered her ability to present her case, and it does not attribute the complainant's lack of comprehension to any fault on the part of the administrative law judge.

Regarding the complainant's concern that the administrative law judge prejudged her case, the commission has conducted an independent and objective review of essentially the same evidence that was before the administrative law judge and has arrived at the same legal conclusion as did the administrative law judge. The complainant's failure to prevail in this matter is not a matter of bias or prejudice on the part of the administrative law judge, but is the result of her own failure to present any competent evidence in support of her assertions that she was discriminated against because of her sex. Although, as the complainant points out in her petition, the Division issued an initial determination finding probable cause, this did not relieve the complainant of her burden of presenting competent nonhearsay evidence at the hearing in support of her claims. The complainant's testimony that she did a good job, but was treated unjustly by the respondent and was set up for failure because she was a woman, simply does not constitute such evidence. Further, as the administrative law judge pointed out in his decision, the complainant's own testimony that the individual who replaced her as frozen food/dairy manager had twenty years experience in "perishables management" explains the disparity in pay better than her unfounded supposition that the difference might have been based on gender. The dismissal of the complaint is, therefore, affirmed.

NOTE: In her petition the complainant indicates that she would like to file a formal complaint against the administrative law judge. The commission has no authority to accept or consider a complaint against the administrative law judge and suggests that, if the complainant wishes to pursue this matter, she direct her complaint to Pamela Rasche, Chief of the Hearing Section in the Equal Rights Division.

cc: H. JAMES TUCHSCHERER

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