TYRONE SCOTT, Complainant

SOCIAL DEVELOPMENT COMMISSION, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter dismissing the complainant's complaint based on his failure to appear for the scheduled hearing. The complainant filed a timely petition for review by the commission.

Based upon its review of this matter, for the reasons stated in the attached Memorandum Opinion, the Labor and Industry Review Commission hereby issues the following:

The decision of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for further proceedings on the complainant's discrimination complaint.

Dated and mailed May 29, 2008
scottty . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant failed to appear at the May 1, 2008 scheduled hearing on his discrimination complaint against the respondent, which alleged disability discrimination and that the respondent took action against him because it believed he was going to file a wage and hour complaint with the Equal Rights Division.

On May 7, 2008, the ALJ issued a decision dismissing the complainant's complaint based upon the complainant's failure to appear and present evidence in support of his complaint on the date and at the time and place scheduled for the hearing. On May 21, 2008, the complainant filed a written petition for commission review of the ALJ's decision.

Wisconsin Administrative Code § DWD 218.18(4) provides, in relevant part, as follows:

FAILURE TO APPEAR AT HEARING. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint....If, within 10 days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

The commission has held that good cause is a reason, which, if established by competent evidence, would amount to circumstances beyond the individual's control, or which would otherwise have prevented or made it unreasonable for the complainant to appear. Kieck v. Mas Graphics (LIRC, 08/26/06), citing Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94). See also, Mason v. ASI Technologies (LIRC, 04/17/98), where the commission held that § 218.18(4) requires the non-appearing party to explain their failure to appear with a degree of specificity adequate to allow a reasoned assessment by the decision maker of whether it is probable that "good cause" could be established.

In his petition for review, the complainant asserted that on the day of the hearing he fell very ill due to a medical condition he has caused by congestive heart failure and severe high blood pressure. The case file shows that previously on May 7, 2008, the complainant had filed with the Division a letter (and envelope with a return address) bearing the name of Dr. Mohammed Sethi. The letter, which is on stationery with the letterhead "MOHAMMED R. SETHI, M.D., Internal Medicine -Endocrinology", is dated May 1, 2008, signed and reads as follows: "Mr. Tyrone Scott was unable to appear at his hearing; because, he was seen at my office for exacerbation of his congestive heart failure and evaluation of his cardiomyopathy. If you have any questions please feel free to contact me at my office." This letter is consistent with the complainant's petition assertion that he fell very ill on the day of the hearing due to a medical condition caused by congestive heart failure.

The commission concludes that the complainant has provided written evidence sufficient to show good cause for his failure to appear at the hearing on May 1, 2008. Accordingly, this matter is remanded to the Equal Rights Division for further proceedings on the complainant's complaint of discrimination.

cc: Attorney F. Thomas Olson

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uploaded 2008/06/02