DON KEMP, Complainant

R J HEINEN INC, Respondent A

RICHARD J HEINEN, Respondent B

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.

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

Dated and mailed February 19, 2002
kempdo . rsd : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

This matter concerns the question of whether the complainant was served with proper notice of his deposition, such that dismissal of the complaint as a sanction for failing to appear might be appropriate. An affidavit in the file indicates that the notice of deposition was mailed to the complainant at his post office box on December 8, 1999. The Division received a copy of the deposition notice on December 9, and the respondent's witness testified that he, too, received a copy of the notice. Under these circumstances, the commission sees no reason to doubt that the deposition notice was mailed to the complainant at his correct address. There is a rebuttable presumption that mail which is properly addressed is delivered and received. State ex rel. Flores, 183 Wis. 2d 587, 612, 516 N.W.2d 362 (1994); Mullen v. Braatz, 179 Wis. 2d 749, 763, 508 N.W.2d 446 (Ct. App. 1993). At the hearing the complainant testified that he never received the deposition notice. The administrative law judge adjudged that testimony not to be credible, and the commission sees no compelling reason to disturb the administrative law judge's credibility determination. Although in his petition for review the complainant argues that the administrative law judge's decision is contrary to the record and the evidence submitted, he has not elaborated upon these assertions, and the commission has no indication as to what evidence in the record the complainant believes is contrary to the administrative law judge's decision. While the complainant did testify that he did not receive the deposition notice, such testimony does not mandate a conclusion in the complainant's favor. Based on its independent review of the record, the commission believes that the administrative law judge's decision is supported by the record. Accordingly, the dismissal of the complaint is affirmed.

cc: Attorney Marna Tess-Mattner

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uploaded 2002/02/20