CAMILO DOMINGUEZ

and

VICTOR FERRER, Complainants

DENNIS LAWRENCE
d/b/a SAWDUST FACTORY, Respondent

On July 17, 1986, an examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter concluding that the Complainants had proven by a fair preponderance of the evidence that they had been unlawfully discriminated against by Respondent on the basis of national origin with respect to hire. The Respondent filed a timely petition for review and subsequently submitted written arguments to the Commission.

Based upon a review of the evidence in its entirety, the Labor and Industry Review Commission, for reasons set forth below, hereby:

That the Examiner's decision herein be set aside and the matter remanded for further hearing and a new decision.

Dated and mailed April 16, 1987

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

Having obtained an attorney subsequent to the hearing, the Respondent asserts on appeal that at least two grounds exist for reversing the Examiner and ordering further hearings:

1. The Examiner erred in prohibiting the Respondent from presenting witnesses and exhibits pursuant to Ind 88.14; and

2. The Examiner erred by failing to make a finding that two job vacancies existed at the time of the alleged discrimination and erred in finding that the Respondent had unlawfully discriminated against the Complainants when the evidence does not support that such vacancies existed.

Addressing the Respondent's second contention first, the Commission believes the Respondent is in error. By finding that "the only reason Complainants were not interviewed and hired by Respondent was because they are Cubans" (Finding of Fact #11), the Examiner ruled out all other explanations for Respondent's failure to hire the Complainants. (Emphasis added)   Furthermore, based on the evidence presented the Examiner could have reasonably concluded that two job vacancies existed at the time in question. According to Bentley, whom the Examiner obviously found more credible, when Bentley first called Lawrence and stated that she wanted to refer two qualified applicants, Lawrence's response was that "If they are Cubans, no way." Because Lawrence did not assert any lack of job vacancies as reason for refusing to interview and hire Complainants when called on May 25, 1984, but instead relied on their national origin to refuse to interview and hire them, it can be inferred that two job vacancies did in fact exist on May 25, 1984.

At the time of the hearing in this matter sec. Ind 88.14 of the administrative rules provided as follows:

"88.14(1) EXCHANGE OF WITNESSES AND EXHIBITS. At least 10 days before the hearing, the parties shall file and exchange the names of witnesses and copies of exhibits which they intend to utilize at the hearing. With the exception of rebuttal matter and in the absence of good cause, the failure to timely file and exchange the names of witnesses and exhibits shall result in the exclusion of the witnesses' testimony and the exhibits." (emphasis added)

Subsequently, the rules were amended, effective July 1, 1986, to read as follows:

"88.14(1) EXCHANGE OF NAMES OF WITNESSES AND COPIES OF EXHIBITS. By no later than the tenth day prior to the day of the hearing, the parties shall file with the division and serve upon the other party a written list of the names of witnesses and copies of the exhibits which the parties intend to use at the hearing. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing." (emphasis added)

Citing the amended rule (which was not effective at the time the hearing was held in this case) Respondent' s attorney argues that the Examiner' s ruling prohibiting the Respondent from presenting his "first witness" (Angier) was in error because Ind 88.14 is not a mandatory bar, but is permissive in nature since the rules state that evidence may be excluded.

Respondent argues that the purpose of the rule is to protect parties from surprise and to protect the fairness and due process of the proceedings, and that the Examiner should have made inquiry as to the effect of admitting the evidence of Respondent and whether its admission would have been prejudicial to Complainants. Respondent argues that the effect of the Examiner's ruling on the Respondent was a complete denial of due process, especially since the Respondent appeared without counsel and was a "lay litigant," not well-versed in rules of procedure.

Although on its face sec. Ind 88.14(1) of the rules in effect at the time of the hearing in this matter would seem to require mandatory exclusion of evidence not filed and exchanged 10 days before the hearing, the Commission believes that the circumstances of this case warrant setting aside the Examiner's decision, and remanding the matter to allow Respondent to present his excluded evidence and for a new decision.

First of all, although it is not known whether Lawrence wanted to use Angier to present "rebuttal" matter or had good cause for failure to timely file his witness and exhibit list, the testimony of Angier, whom the Examiner ruled could not be called by Lawrence, would not have resulted in any prejudice, i.e., surprise, to Complainants because Angier had appeared on the Complainants' own witness lists.  Secondly, under a strict reading of Ind 88.14(1), while the Respondent has not objected, it could be argued that even the testimony of Bentley (and possibly that of Patty Dockham) should not be allowed because the Complainants' witness lists were filed only 9 days before the hearing. The Commission would quickly add, however, that the Complainants' failure to timely file their witness list should not result in the dismissal of their cases, based on the same reasoning that the Respondent is being permitted a further hearing to present its evidence;  namely, that the purpose of the rule is to protect the parties from surprise and to ensure fairness of the proceedings, and the filing of the witness list one day late did not result in any prejudice, i.e., surprise to Respondent.

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