KELLY JEAN MAZZARA, Complainant

ENDATA, INC., Respondent

A hearing examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on July 17, 1986. Complainant filed a timely petition for review of the Examiner's decision by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

The decision of the Examiner is affirmed with the following modifications:

1. Add the following paragraph between paragraphs 2 and 3 of the Findings of Fact:

"2a. In January 1985, Complainant's supervisor was promoted. Complainant's new supervisor was critical of Complainant's job performance and also was stricter than the previous supervisor concerning work habits."

2. In paragraph 5 of the Findings of Fact, delete the last sentence and substitute therefor:

"Complainant had been pregnant previously, in August 1983, and at that time requested and was granted a maternity leave by Respondent."

3. At the end of paragraph 6 of the Findings of Fact, add the following:

"Complainant was discharged because of her new supervisor's dissatisfaction with her work and. attendance habits."

The above modifications were made to make the Findings better conform with the evidence.

As modified, the Examiner's decision shall stand as the FINAL ORDER herein.

Dated and mailed January 9, 1987

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

In her petition for review, Complainant argues that the examiner erred when he "dismissed the Complaint and made a finding of no probable cause without permitting Complainant to perpetuate testimony through the cross-examination of an adversary witness . .. It is believed that cross-examination of Respondent would perpetuate testimony sufficiently strong to reverse the order of the hearing examiner and therefore Complainant's substantive due process right to confront witnesses was impaired."

The Commission finds no merit to Complainant's argument. First, the examiner acted within his authority to dismiss a complaint after the complainant has presented his or her case, where the examiner concludes that the complainant did not present sufficient evidence to satisfy the required burden of proof.

Second, while Complainant had a right to cross-examine any witness Respondent may have called, Complainant's right to cross-examine or "confront" those witnesses does not arise where, as here, Respondent called no witnesses.

Complainant complained that she "had not finished putting in proof of her claim, as a substantial part of Complainant's proof would have come through adverse examination of Respondent's material witness." This may be true. However, if testimony from a respondent's witness or witnesses comprises an integral part of a complainant's case, then it is the complainant's responsibility to call those witnesses adversely to ensure that this testimony will be a part of the record. A complainant need not rely on cross-examination of respondent's witnesses to introduce the witnesses' testimony. But where a complainant neglects to call the witnesses adversely or, as here, is not permitted to call them for failure to comply with a specific discovery rule, that complainant has no statutory or constitutional right to insist that, at a point where the examiner has the discretion to dismiss the complaint, the examiner continue the hearing, seemingly for the sole purpose of affording the complainant an opportunity to present the testimony from respondent's witnesses through cross-examination.

150

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/03/26