BRUCE L. GROSS, Complainant

SODEXHO MARRIOTT MANAGEMENT, INC., Respondent

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 June 21, 2002
grossbr . rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

This case arises out of allegations by Complainant Bruce L. Gross that Respondent Sodexho Marriott Management Inc. discriminated against him because of disability. The Administrative Law Judge dismissed the complaint based on findings and conclusions that it was not established that Gross had a disability and that it was established that the actions taken by Sodexho which Gross complains of (including discipline and discharge) were taken because of conduct Gross engaged in which warranted those actions.

The ALJ's Findings were based on matters which were conclusively established by operation of law as a result of Gross' failure to respond to Requests For Admissions properly served on him by Sodexho, and on Gross' failure to present any competent and persuasive evidence that he had a disability.

The ALJ has carefully and thoroughly described his findings, conclusions and rationale in his decision, and based on its review the commission is in complete agreement with those findings, conclusions and rationale.

In his petition for review, the Complainant argues:

At no time during the hearing did I admit to the statements under Conclusions of Law on page 3 items numbered 5 and 6. I made a statement at the time of the hearing my medications had been increased, and Judge Jakubowski that (sic) the case should not move forward at that time. I didn't feel like the case was going to be dismissed.

The commission finds these arguments unpersuasive. It is true that the Complainant did not actually admit these things. However, as noted above, the Complainant failed to respond to Respondent's Requests For Admissions, as a result of which they were by operation of law deemed admitted and conclusively established. Wis. Stat. § 804.11(1), (2). The matters thus conclusively established fully support the conclusions of law to which the Complainant objects.

Furthermore, the commission believes that the ALJ's refusal to agree to a postponement of the hearing on the morning of hearing, was appropriate for several reasons. In particular, the only materials presented by the Complainant in support of his allegation that he could not proceed were neither competent as evidence, nor persuasive.

For all of the foregoing reasons, the commission agrees with and affirms the decision of the ALJ.

cc: Vilecia C. Summers, Attorney for Respondent

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uploaded 2002/06/24