ANTHONY WALKER, Complainant

MASTERSON COMPANY, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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 October 4, 1995
walkean . rsd : 105 : 1

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

The complainant first asserts in his petition for review that the administrative law judge was unfair in his disregard of the complainant's testimony.  This assertion is factually incorrect, however.  The administrative law judge granted the respondent's motion to dismiss, upon the complainant's having finished presenting his case in chief.  As the administrative law judge explained at the end of the hearing, he took all but one of the complainant's factual assertions as being true.  This whole case is aptly summarized by the complainant's testimony to the effect that he figured his filing of complaints against the respondent "could cause them" to terminate the complainant's employment.  Of course, a person's filings could cause an employer to terminate his or her employment, but there is no evidence at all which indicates that the respondent in this case terminated the complainant because of the complaints he filed.  After the second complaint the complainant filed, almost a year went by with no repercussions to the complainant.  The complainant conceded that his supervisor' s treatment of him was no worse after he filed the complaint, than it had been before he filed the complaint.  The complainant introduced no evidence of management bias even remotely attributable to the complainant's having filed the charges in question.  The timing of the discharge, finally, and the complainant's conduct preceding the discharge, make it clear it was that conduct which resulted in the discharge of the complainant.  The complainant admitted having beaten against a pressure cooker with a very large wrench, when arguing with a coworker, a wrench which could have caused serious injury or death to the co-worker had the complainant struck him with it.  Given the previous disciplinary actions by the respondent against the complainant, and specifically the provision in the April 1993 settlement agreement to the effect that threatening, intimidating, and combative behavior would not be allowed, the commission must conclude that the complainant's confrontation with the co-worker had everything to do with the complainant ' s discharge, and that the complainant's previous charges against the respondent had nothing to do with it.

The complainant also challenges the administrative law judge's decision to prohibit the employe's witnesses from testifying at the hearing.  The commission has reviewed the transcript from the hearing, and fully agrees with the administrative law judge's decision.  As the administrative law judge indicated, the purpose of the notice requirement for witnesses and exhibits is to give the opposing party proper opportunity to prepare its case against such witnesses and exhibits.  A lack of notice prejudices the party that did not receive it, and the complainant offered no legitimate reason for his failure to have met the notice requirements.

cc: Alan E. Seneczko

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

uploaded 2011/02/14