WILLIAM G DYGON, Complainant

SMURFIT STONE CONTAINER CORP, Respondent

On March 22, 2006, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter in which he concluded there was no probable cause to believe the respondent discriminated against the complainant, in violation of the Wisconsin Fair Employment Act, with regard to his terms and conditions of employment because of a disability or by refusing to reasonably accommodate a disability, and no probable cause to believe the respondent discriminated against the complainant, in violation of the Act, because he opposed a discriminatory practice under the Act.

The complainant filed a timely petition for commission review and a brief in support of his petition. The respondent subsequently submitted an answer in response to the complainant's petition for review.

An audio tape was used at the hearing to record the testimony and other evidence taken at the hearing in this matter. However, when the commission attempted to prepare a written synopsis of the record of the hearing to review this matter it discovered that the audio tape had stopped before the complainant, apparently the only witness to testify, started testifying. Furthermore, the commission contacted the ALJ to have him prepare, from his handwritten notes taken at the hearing, a summary of proceedings for possible commission use to review this matter but the ALJ stated that he was only able to locate the first page of his notes for this case.

The commission's review of petitioned cases is based on the testimony and other evidence presented at the hearing. The commission has set aside an ALJ's decision and remanded the matter for a new hearing where the commission's ability to effectively review a case was compromised due to portions of a hearing not being tape-recorded. Clarke v. Plast-O-Con Inc. (LIRC, 02/28/99); Saccomandi v. E. Pocus and Co. (LIRC, 09/09/93); Krenz v. Lauer's Food Market (LIRC, 09/27/90). Here, the entire testimony and evidence presented by the only witness, the complainant, was not tape-recorded, and, the ALJ has only been able to locate the first page of his handwritten notes for this case.

Under the circumstances presented here, the commission therefore issues the following:

The March 22, 2006 decision of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for a new hearing.

Dated and mailed February 28, 2007
dygonwi . rpr : 125 : 9

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Melissa M. Bien

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uploaded 2007/03/02