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

DON KEMP, Complainant

R J HEINEN INC, Respondent A

RICHARD J HEINEN, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199804076

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 issues the following:

ORDER

The decision of the administrative law judge is set aside and the matter is remanded for further proceedings consistent with this decision.

Dated and mailed October 27, 2000
kempdo2.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On June 30, 2000, the administrative law judge dismissed the complaint based upon the complainant's failure to comply with the respondent's legitimate discovery requests. Specifically, the complainant failed to appear at a deposition arranged by the respondent and scheduled to be held on January 12. The administrative rules provide that an administrative law judge has the same authority to compel discovery, issue protective orders, and impose sanctions as the court has under chapter 804 of the statutes. See Wis. Admin. Code § DWD 218.14(4). Chapter 804 of the statutes provides that if a party fails to attend his own deposition after being served proper notice, the court may make such orders in regard to the failure as are just and may take action up to and including the dismissal of the complaint. See Wis. Stat. § 804.12(4). In this case, the complainant explained to the administrative law judge on several occasions that the reason he did not appear at the deposition is that he did not receive notice of the deposition. If the complainant's explanation is found to be credible, then dismissal of his case as a sanction for failing to appear at the deposition is clearly inappropriate. However, the administrative law judge dismissed the complaint without addressing the complainant's stated reason for his failure to appear. Consequently, the commission remands this matter to the administrative law judge so that he may elicit such sworn testimony from the parties as will enable him to make an assessment of the credibility of the complainant's explanation for his failure to appear and to determine whether dismissal of the complaint is warranted.

NOTE: The commission notes that, at various points throughout these proceedings, the complainant has attempted to move for a default judgment in his favor and has requested that the administrative law judge recuse himself from the case. The complainant renews these motions in his petition for review. Regarding the latter, the commission has no authority to rule on a request to disqualify the administrative law judge. Rather, that request must be made directly to the administrative law judge in the manner set forth in section DWD 218.16 of the administrative rules. Regarding the motion for a default judgment -- a matter which is also not properly before the commission at this time -- the complainant should be advised that a default judgment is not available under the Wisconsin Fair Employment Act.

cc: Marna M. Tess-Mattner

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