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

ROBERT L PERKINS, Complainant

CONSOLIDATED PAPERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. 199802737, 199803906
EEOC Case Nos. 26G982002,  26G990380


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 March 28, 2002
perkiro . rsd : 164 : 9

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In his petition for commission review the complainant argues that the fairness of the hearing and the correctness of the decision were impaired by a number of factors. First, the complainant contends that the administrative law judge failed to follow department procedures regarding the granting of postponements and continuances and regarding discovery. The complainant has not elaborated upon his assertion regarding the granting of postponements and continuances, and the commission's review of the file fails to reveal any request for a postponement or continuance that was not granted.

With respect to discovery, the complainant argues that the administrative law judge unfairly failed to order discovery as requested on February 4, 2000, and unfairly denied his motion for an order compelling discovery filed on August 9, 2000, and his motion for sanctions filed on the same date. The case file indicates that the administrative law judge dealt with the complainant's discovery requests through a series of pre-hearing conferences, and ultimately notified the complainant that he would take the August 9 motions under advisement until the hearing, at which point they would be addressed as necessary. At the hearing the complainant indicated that the documents he sought included a 1984 position description for senior process engineer, monthly technical summaries, and monthly STOP observations. The respondent indicated that it had failed to produce the first two items because it was unable to locate them, and the administrative law judge reasonably concluded that, lacking any reason to doubt the veracity of this assertion, there was no basis upon which to order production of the documents. The administrative law judge withheld any ruling regarding the monthly STOP observations pending a determination as to whether those documents were necessary. In a letter dated September 19, 2000, the administrative law judge notified the complainant that his request for monthly STOP reports was denied on the ground that sufficient evidence on the issue had been presented at the hearing. Although in the same letter the administrative law judge reminded the parties that they had until November 8, 2000 to submit closing arguments, the complainant did not take the opportunity to file a closing argument and did not challenge the administrative law judge's decision regarding his discovery request. The complainant's petition contains no explanation as to the significance of the STOP reports, nor has the complainant specified why he believes his inability to obtain those records prejudiced him in the presentation of his case. Based upon its review of the record, the commission sees no reason to believe that the admission of the monthly STOP reports into the record would have had any effect on the outcome of this matter.

The complainant also argues that the administrative law judge unfairly denied his objections to the authenticity of discovery documents raised at the hearing. The complainant made an argument at the hearing that several of the documents provided by the respondent were not authentic copies and did not reflect what the complainant recalled they did. The respondent rejoined that it had provided the complainant with the documents it had available. The administrative law judge ruled that, if the complainant doubted the authenticity of the documents, he was free to present evidence on that point at the hearing, but that until such evidence was presented he would accept the respondent's representation that the documents were what it had in its possession. The administrative law judge's disposition of the issue was appropriate, and there is nothing in the record to suggest that the complainant succeeded in demonstrating that any of the respondent's documents were inauthentic. Indeed, the complainant's petition contains no argument that he made such a showing, nor has the complainant explained which documents he found questionable and why. Consequently, the commission sees absolutely no basis to conclude that the complainant was prejudiced by the administrative law judge's ruling on this point.

Next, the complainant takes issue with the fairness of dismissing portions of his complaint by interim order on November 19, 1999, and of the denial of his request to amend his complaint. Regarding the former, the interim order dismissing portions of the complaint was based upon the fact that the allegations in question did not meet the timeliness requirements set forth in the statutes. The denial of the complainant's request to amend his complaint was also appropriate, given that the last discriminatory incident was alleged to have occurred approximately 22 months prior to the filing of the amended complaint and was, therefore, untimely.

Turning at last to the merits of his case, the complainant argues that the findings of fact are erroneous based upon the evidence presented at the hearing and that the conclusions of law are not supported by the evidence. The complainant has not explained which findings of fact he believes are erroneous, nor why he believes he should prevail based upon this record. The commission's review of this matter does not reveal any findings of fact that are unsupported by the record, and the commission agrees with the administrative law judge's conclusion that there is no probable cause to believe discrimination occurred. Accordingly, the dismissal of the complaint is affirmed.

cc: Attorney Stephen Erf


Appealed to Circuit Court. Dismissed for failure to comply with briefing schedule, December 10, 2002.

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