PETER J. WHIPP, Complainant


ERD Case No. 8651101, EEOC Case No. 260863182

An administrative law judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on January 7, 1988. Ccmplainant filed a timely petition for review of the Judge's decision by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed February 24, 1988

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


In his petition for review, the Complainant asserts that his attorney was ill-prepared to present his case and that there were "several untruths, misunderstandings and outright lies" in the testimony, all of which he can now prove and some of which could have been proven at the hearing but for his counsel's "tunnel vision" and the fact that he (Complainant) had misplaced taped conversations with various management personnel at the Respondent's hospital. Included with the Complainant's petition were several attachments which he apparently relies upon as evidence to support his petition for review. Some of these attachments had not previously been admitted into evidence at the hearing.

Neither the Complainant's assessment of his attorney's performance nor his claims about what he thinks he can now prove (or could have proven), however, provide a basis for the Commission to reverse the decision of the Administrative Law Judge (ALJ) or to order a further hearing in the matter. The Complainant's disagreement with the manner in which his attorney handled the case is not a matter upon which the Commission has authority to act. Secondly, the Commission cannot consider the attachments submitted by Complainant which were not previously admitted into evidence at hearing. Complainant has not shown that these attachments constituted new evidence sufficiently strong to reverse or modify the ALJ's decision, and could not have been previously discovered by due diligence.

The Commission finds the decision of the ALJ to be fully supported and agrees with his assessment that there was "no reason to doubt that, in a case such as this in which the Complainant -- who had been off work for almost a year -- sought to be employed by the Respondent in a new position, the Respondent would want to have evidence, prior to considering him for the position, that he could in fact return to work for the Respondent." ALJ Mem. Op., pg. 6 (Emphasis in original). The simple fact of the matter is that the Complainant had not supplied the Respondent with a medical release at the time Respondent was considering applicants for the recovery homes manager position.

The Complainant apparently also suggests wrongdoing on the part of the Respondent based on an alleged settlement offer by Herb Steffes shortly after the mailing of the notice of hearing in this matter. However, settlement attempts are encouraged in these matters and can occur at any stage of the proceedings.


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