MIKE YOUNG, Complainant

LEACH COMPANY, RESPONDENT A, 

DAVID C. LEACH, RESPONDENT B, 

GARY GJERTSON, Respondent C

On November 7, 1990, an Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter ordering the dismissal of the Complainant's complaint based on his failure to appear for the November 1, 1990 scheduled hearing. The Complainant subsequently filed a timely petition for Commission review of the matter.

Based upon a review of the matter, the Labor and Industry Review Commission hereby issues the following:

The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed December 18, 1990

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

On appeal, the Complainant argues that he never received any notice of the hearing; that he does not believe he was mailed notice of the hearing. The Commission is not persuaded that Complainant failed to receive notice of the hearing. First, the case file shows that the Department mailed a copy of the hearing notice to Complainant on August 3, 1990, setting forth November 1 as the hearing date. There is nothing in the file which indicates that Complainant's hearing notice had been returned to the Department as undeliverable. Secondly, in order for the Commission to find that Complainant had no notice of the hearing, the Commission would also have to conclude that the Complainant never received Respondent's list of witnesses and exhibits that Respondent intended to use at the hearing. The case file shows that by letter dated October 22, 1990, the Respondent mailed to Complainant a copy of its list of witnesses and exhibits for the hearing. Receipt of these materials would, or should have alerted Complainant to the fact that a hearing in the matter would be held very shortly. Section Ind 88.14 of the Department's rules requires that by no later than ten days prior to the hearing, parties file with the Department and serve upon the other party the names of witnesses and copies of exhibits intended to be used at the hearing. The Commission, having previously reviewed several of Complainant's discrimination cases, takes administrative notice of the fact that Complainant was aware of sec. Ind 88.14, and thus, the significance of Respondent's witness and exhibit list. In short, the Complainant would have been provided constructive notice of the scheduled hearing.

Having no reason to believe that Complainant failed to receive not only the Notice of Hearing, but Respondent's list of witnesses and copies of exhibits for the upcoming hearing, the Commission is not persuaded that the Complainant failed to receive notice of the hearing.

125 / T

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