8-93-0254. LOEL D. THOMETZ vs. HERCULES INC. Defendant.

CourtUtah
Utah Workers Compensation Decisions 1995. 8-93-0254. LOEL D. THOMETZ vs. HERCULES INC. Defendant THE INDUSTRIAL COMMISSION OF UTAHLOEL D. THOMETZ, Applicant, vs. HERCULES, INC. Defendant.Case No. 8-93-0254ORDER DENYING MOTION FOR REVIEWHercules, Inc. asks The Industrial Commission of Utah to review the Administrative Law Judge's determination that Hercules violated the Utah Anti-Discriminatory Act ("the Act" hereafter; Title 34, Chapter 35, Utah Code Ann.) by terminating Loel D. Thometz' employment on account of his age. The Industrial Commission exercises jurisdiction over this Motion for Review pursuant to Utah Code Ann. §63-46b-12, Utah Code Ann. §34-35-7.1(11), and Utah Admin. Code R560-1-4.5. ISSUES UNDER REVIEW Hercules' motion for review raises 12 objections and errors which can be categorized as follows: 1) Did the ALJ err in his evaluation of the statistical evidence regarding Hercules' employment practices; 2) Are the ALJ's findings of fact supported by the record; and 3) Has Mr. Thometz failed to mitigate his damages. BACKGROUND Mr. Thometz was employed by Hercules from May 1984 until August 1992, when he was discharged in a reduction in force. At the time of his discharge, Mr. Thometz was the oldest member of his work group, at 55 years of age. Mr. Thometz filed a charge of age discrimination against Hercules with the Utah Antidiscrimination Division ("UADD"). UADD investigated the matter and found reasonable cause to believe that Hercules had unlawfully discriminated against Mr. Thometz on the basis of his age. Hercules then requested and received a de novo evidentiary hearing on Mr. Thometz' charge. Based on the evidence and argument presented during the evidentiary hearing, the ALJ concluded, as had UADD, that Hercules had unlawfully discriminated against Mr. Thometz on account of his age. Hercules then filed its motion for review with the Industrial Commission. DISCUSSION Mr. Thometz' charge of discrimination against Hercules is based on §34-35-6 of the Utah Anti-Discriminatory Act, which provides in material part as follows:
(1) It is a discriminatory or prohibited employment practice:
(a)(1) for an employer to . . . terminate any person . . . because of . . . age, if the indiividual is 40 years of age or older . . . .
The Industrial Commission notes that Hercules does not challenge the ALJ's...

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