MICHAEL D SMITH, Complainant

RWS TRUCKING INC, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The first sentence in paragraph 2 of the administrative law judge's ORDER is deleted and the following sentence substituted therefor:

"That the respondent shall make the complainant whole for all losses in pay and benefits that the complainant has suffered by reason of its unlawful conduct by paying the complainant the sum he would have earned from the date of termination until July 21, 2009, at which point the complainant waived his right to reinstatement."

2. Paragraph 3 of the administrative law judge's ORDER is deleted.

3. Paragraph 5 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. §§ 111.395, 103.005(11) and (12)."

4. The administrative law judge's ORDER is renumbered accordingly.

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

Dated and mailed November 18, 2009
smithmi : rmd . 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

While the respondent's petition for commission review addresses the merits of the case, the administrative law judge's finding of discrimination was not based upon an analysis of the case on the merits, but was as a sanction for the respondent's failure to comply with the administrative law judge's discovery order. The administrative law judge notified the respondent that failure to comply with his order granting the complainant's motion to compel discovery could result in a finding of discrimination without hearing. However, notwithstanding this clear warning about the consequences of failing to comply with the discovery order, the respondent took absolutely no steps to do so. Because Wis. Stat. § 804.12(2)(a)1. permits the administrative law judge to render a judgment by default against a party who fails to comply with an order, and because the commission believes that the administrative law judge's disposition was appropriate under the circumstances of this case, the administrative law judge's order is affirmed.

NOTE: The commission has modified the administrative law judge's ORDER to reflect the fact that back pay does not terminate when the decision becomes final, but when the complainant resumes employment with the respondent or would resume such employment but for his refusal of a valid offer of a substantially equivalent position. Because in this case the complainant notified the commission on July 21, 2009 that he no longer wished to be reinstated, his back pay terminates as of that date.

cc: Attorney James A. Walcheske

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uploaded 2009/11/25