MARYKAY HASKINS, Complainant
WALMART STORES INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter dismissing the complainant's complaint based upon her failure to appear and proceed at a hearing scheduled for June 6, 2008. The complainant timely filed a petition for review of the ALJ's decision.
The commission has considered the petition and the positions of the parties. Based on its review, for the reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission issues the following:
The decision of the administrative law judge issued in this matter is set aside and this case is remanded to the Equal Rights Division for further proceedings. (1)
Dated and mailed July 25, 2008
haskima . rpr : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
MaryKay Haskins appealed from an Initial Determination which found no probable cause to believe the respondent had violated the WFEA by refusing to hire or employ her because of her age. Haskins had applied for employment with the respondent at a store in Kenosha, Wisconsin.
After certification of the case for hearing the respondent's attorney filed written notice of its intent to seek discovery from Haskins, who was not represented by legal counsel. On December 28, 2007, counsel served upon Haskins respondent's First Set of Interrogatories and Requests for Production of Documents.
Apparently, Haskins and respondent's counsel spoke by phone on January 9, 2008, during which communication Haskins indicated that she thought her case had been dismissed. A letter addressed to Haskins from counsel dated February 7, 2008, references this telephone communication. The letter advises Haskins that her case had not been dismissed. It also informed Haskins that her responses to the discovery requests were due on or about January 30, 2008, and that if counsel did not receive the responses on or before February 17, 2008, counsel would file a Motion to Compel with the ALJ.
On February 18, 2008, the ERD issued a notice of hearing to the parties which set forth June 6, 2008, at 10 a.m. at the Kenosha County Center in Bristol, Wisconsin as the date, time and place for the probable cause hearing on Haskins' discrimination complaint.
On April 24, 2008, counsel again wrote to Haskins to state that she had not received the responses to the discovery requests. Counsel informed Haskins that she expected to receive Haskins' responses on or before May 5, 2008 and that if counsel did not, she would file a Motion to Compel with the ALJ.
On April 29, 2008, counsel served upon Haskins notice that the respondent would be taking her deposition on May 15, 2008, at the Kenosha County Courthouse.
On May 8, 2008, counsel filed by facsimile transmission a motion to compel Haskins' responses to her discovery requests. The ALJ did not receive the motion until May 12, and it did not include a copy of the discovery counsel had requested from Haskins. The ALJ therefore requested counsel to provide him with a copy of the discovery requested from Haskins. Counsel complied via fax and regular mail. Counsel's faxed copy of the discovery requested from Haskins was received at the ERD in the afternoon on May 13 and the hard copy of same was received at the ERD during the morning on May 15.
Meanwhile, also during the morning on May 15, counsel was taking Haskins' deposition. A transcript of that deposition is included with the case file.
During the afternoon on May 15, 2008, counsel faxed a letter to the ALJ indicating that counsel agreed to exclude from respondent's discovery requests, the Interrogatory and Production of Document requests relating to an alleged learning disability by Haskins since Haskins had not amended her complaint to include such allegation.
On May 19, 2008, the ALJ sent a letter to Haskins stating, in part, that on May 12 he had received counsel's Motion to Compel Discovery, that on May 15 he had received a copy of the discovery requested by counsel and counsel's stated exclusions from the discovery requests, and that Haskins was hereby ordered to complete the discovery requests, minus the excluded requests, by May 26, 2008, the date the witness and exhibit lists were due.
The case file shows that on May 22, 2008, the ERD received from Haskins various documents, which included extensive lists of names of companies where she had made applications for employment.
On June 6, 2008, the date scheduled for the hearing on Haskins' complaint, Haskins failed to appear for the hearing.
The ALJ issued a decision on June 19, 2008, stating that the hearing was not cancelled or postponed and dismissing Haskin's complaint based on her failure to appear and proceed at the time scheduled for the hearing.
In her petition for review, Haskins states that she attended the respondent's deposition, that following that she received notice "that all my forms were not filled out", (2) that she then consulted an attorney (3) who told her to fill them out as best she could, and that she complied. Haskins then goes on to assert the following:
I did not show up at the County site for 2 reasons:
#1 No money for transportation [to] KE, Co site
#2 Robin Clay [respondent's counsel] stopped the hearing with a letter saying I did not comply[.] Reschedule thus confusing the date of hearing.
Haskins further states that she appeals, and indicates that she hopes the hearing will be held at the Kenosha County Job Center in the City of Kenosha, that bus service is available to this site.
DISCUSSION
A party who fails to appear at the hearing may have the hearing reopened if the party shows good cause in writing for the failure to appear. Wis. Admin. Code § DWD 218.18(4).
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 otherwise prevented or made it unreasonable for the party to appear. Kieck v. Mas Graphics (LIRC, 08/26/06), citing Talaska v. C.A.T.S. Nationwide (LIRC 02/08/94).
The commission finds that the record in this case provides sufficient evidence of circumstances which otherwise prevented Haskins from appearing for the June 6, 2008 hearing.
In her petition for review, Haskins indicates that counsel "stopped the hearing with a letter saying I did not comply[.] Reschedule thus confusing the date of the hearing." While counsel may not have actually written a letter requesting a rescheduling of the June 6 hearing on the ground that Haskins had not complied with the respondent's discovery requests, counsel in fact stated that she would do this for that reason at Haskins' May 15, 2008 deposition. This is shown by the following exchange between counsel and Haskins at the close of the deposition:
MS. CLAY: Ms. Haskins, I don't have any other questions. I will request that we get responses to the request for information and the interrogatories that we sent to you. If you need me to provide you with another copy, then I can send that to you.
THE WITNESS: Yeah, because I don't understand it. I'll let a lawyer look over it. I have no idea what it means.
MS. CLAY: We will request that the hearing be rescheduled until we receive those responses.
THE WITNESS: Okay.
MS. CLAY: If, for whatever reason, you have any additional questions about any responses or any information that you provided, you have my contact information.
THE WITNESS: How long will it take you to send me them?
MS. CLAY: Send you what, the questions?
THE WITNESS: Yeah.
MS. CLAY: I'll be back to the office tomorrow.
THE WITNESS: Why should we have to postpone the hearing then?
MS. CLAY: Because we have to have time to review your responses. I'm going to send them to you and you have to respond. So once you get them back to us, we have to have time to review them and perhaps research the information you've provided. So once you do that, then we'll be able to go forward with the hearing.
That's it. Thank you.
T. 36-37. (Emphasis added.)
Counsel's statements that she would request that the hearing be rescheduled until the respondent received Haskins' discovery responses and that there was a need to postpone the hearing to have time to review those responses before going forward with the hearing reasonably led Haskins to believe that the hearing would be postponed.
It may be the case that subsequent to the deposition, counsel concluded that it was not necessary to request a postponement of the hearing because Haskins had sufficiently supplied the requested discovery responses at the deposition. Indeed, a review of the transcript shows that for all practical purposes Haskins responded to the respondent's Requests for Production of Documents and Written Interrogatories during her deposition. With respect to the Requests for Production of Documents, Haskins testified that it was just the documents she had at the deposition that she intended to use as evidence during the (probable cause) hearing. T. 30. The documents Haskins had at the deposition were marked as exhibits. They were: her complaint (Exh. 1), her August 2, 2006 respondent employment application (Exh. 2) and her February 26, 2007 respondent employment application (Exh. 3). T. 18; 23; 27. Further, the deposition transcript shows that the questions counsel asked of Haskins and the responses she gave provided the respondent with the answers it was seeking through its written interrogatories. (4)
Regardless of whether or not it was Haskins' deposition testimony and evidence that caused counsel not to request a postponement of the hearing, however, counsel's statements at the deposition reasonably led Haskins to believe that counsel would in fact request a postponement of the hearing.
Finally, while Haskins has also indicated that lack of money for transportation to the hearing location was a reason for her failure to appear at the hearing, counsel's statements at the deposition about requesting a postponement and why there was a need to postpone the hearing alone provided good cause for Haskins' failure to appear. It cannot now be determined whether or not Haskins' asserted lack of money for transportation would have caused her to not appear for the hearing since she may have found a means to obtain funds to get to the hearing location had counsel not stated that she was requesting a postponement of the hearing.
NOTE: In view of Haskins' request that the hearing be held at the Kenosha Job Center in the City of Kenosha because bus service is available to that location, in scheduling this matter for further proceedings, if at all possible, the Equal Rights Division should attempt to accommodate Haskins' request when scheduling this matter for further proceedings. The commission notes that the administrative rules of the Division simply provide that "The hearing shall be held in the county where the alleged act of discrimination occurred, or at another location with the consent of the parties." Wis. Admin. Code § 218.11(2). The commission also notes that the respondent had scheduled Haskins' deposition to be taken at the Kenosha County Courthouse, and Haskins apparently had no difficulty getting there.
cc:
Attorney Robin C. Clay
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