KIMBERLY J BACKHAUS, Complainant
TCS OF WISCONSIN LLC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an order dismissing the complainant's complaint in this matter. The complainant timely filed a petition for commission review.
Based upon a review of the matter, the Labor and Industry Review Commission hereby issues the following:
The administrative law judge's order dismissing the complainant's complaint is set aside, and this matter is remanded to the Division for a hearing and determination on the issue of whether the complainant had good cause for her failure to appear at the July 28, 2008 scheduled hearing. If good cause is established, the Division shall schedule the matter for further proceedings.
Dated and mailed September 26, 2008
backhki . rpr : 125 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Kimberly Backhaus failed to appear at the July 28, 2008 scheduled hearing on her complaint of alleged sex discrimination and termination of employment because she opposed a discriminatory practice under the Act.
On August 7, 2008, the ALJ issued a decision dismissing Backhaus' complaint based on her failure to appear at the scheduled hearing. (The ALJ's decision notes that the respondent also failed to appear for this hearing.)
In her petition for review of the ALJ's decision, Backhaus asserts that she did not receive notification of the scheduled hearing in her case.
A party whose complaint has been dismissed for failure to appear at the hearing may have the hearing reopened provided the party has shown good cause in writing for the failure to appear. Wis. Admin. Code § DWD 218.18(4). 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 complainant to appear. Kieck v. Mas Graphics (LIRC, 08/26/06, citing Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).
The case file indicates that the Equal Rights Division sent a copy of the notice of hearing to Backhaus' last known address. However, there is also nothing in the case file that suggests any basis or reason for disputing Backhaus' assertion that she did not receive notice of the hearing scheduling her case for hearing.
Under the circumstance presented here, the question of whether or not Backhaus had good cause for her failure to appear at the July 28, 2008 hearing would best be resolved at a hearing. Accordingly, the commission has set aside the ALJ's order dismissing Backhaus' complaint and remanded this matter to the Division.
cc:
Ronald J. Retzer, President
TCS of Wisconsin, LLC
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uploaded 2008/09/29