STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
NA D TANG-NGUYEN, Complainant
LEATHER LIMITED, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 199704705
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 modification:
Paragraph 3 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 Order, including all computations used to arrive at a determination of the amount of back pay owed, pursuant to Paragraph 2 of the Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin. 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. Stat. § § 111.395, 103.005(11) and (12)."
DECISION
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 30, 1999
nguyena3.rmd : 164 : 9
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
In the petition for commission review the respondent argues that it did not discriminate against the complainant, but that she was not reporting to work on time and her supervisors were trying to correct this behavior. The respondent contends that other employes have been issued corrective action for the same behavior. The respondent submits a variety of documentation in support of this argument, none of which was presented at the hearing and which, therefore, is not in the record. The law requires that the commission base its review solely upon the sworn testimony and documentary evidence presented at the hearing before the administrative law judge. See Wis. Stat. § 111.39(5) and Wis. Admin. Code § LIRC 4.02. Consequently, the commission will neither consider nor address those documents which the respondent has presented for the first time with its petition, and will confine its review to that evidence which is already in the record. The unrebutted evidence presented at the hearing established that the complainant's supervisors made disparaging remarks about Asian people, that they disciplined the complainant for matters over which non-Asian employes were not disciplined, and that the complainant was ultimately discharged based upon conduct for which non-Asian employes were neither discharged nor disciplined. In the absence of any legitimate, nondiscriminatory explanation for the respondent's actions, the commission is compelled to conclude that the complainant was discriminated against based upon her race. Accordingly, the decision of the administrative law judge is affirmed.
NOTE: In its petition the respondent asserted that approximately a week prior to the scheduled hearing date it realized its representative would not be able to make it to the hearing and that it sent a FAX to the Division requesting a postponement. The respondent, apparently, believes that the commission should reopen the record based upon these circumstances. However, the respondent was on notice that postponements must be requested within ten days after the issuance of the hearing notice and, further, that postponements would be granted only for good cause and not for the mere convenience of the parties. Although the respondent was given more than three months notice of the hearing date, it made no effort to request a postponement until a week prior to the hearing, and then not for a reason that would amount to good cause. Further, although the respondent received no notification from the Division that its request had been granted (and the file contains no record that the Division actually received any postponement request), it nonetheless elected not to appear at the hearing. Under all the circumstances, the commission sees no reason to grant the respondent any further hearing in this matter.
cc: Karen Berry
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