STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOANNE ELIZABETH SANDOVAL, Complainant

MARVIN'S BRICK PAVING, Respondent A

MARK'S CONSTRUCTION, Respondent B

MARVIN MARTINEZ, Respondent C

FAIR EMPLOYMENT DECISION
ERD Case No. 200700575, EEOC Case No. 26G2007-00823

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development 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, except that it makes the following modification:

Paragraph 4 of the administrative law judge's ORDER is deleted and the following substituted therefor:

That within 30 days of the expiration of time within which an appeal may be taken herein, Respondents shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., § § 111.395, 103.005(11) and (12).

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed February 27, 2009
sandojo . rsd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The commission first notes that the respondents' petition for commission review in this matter does not specifically challenge any of the procedural and evidentiary rulings made by the administrative law judge, nor does it challenge any specific findings of fact as being unsupported by the record, nor does it specifically assert whether and why any conclusions of law are claimed to be in error. Thus, the commission has no specific indication as to why the respondents believe they should prevail on this record or what they claim was erroneously decided by the administrative law judge. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the administrative law judge are supported. Concluding that they are, the commission has adopted them as its own.

The administrative law judge exercised his discretion to consider whether the respondents had good cause for their failure to appear at the properly noticed hearing on the merits of the complainant's charge.

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

FAILURE TO APPEAR AT HEARING....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, ERD Case No. 200502527 (LIRC, 08/26/06), citing Talaska v. C.A.T.S. Nationwide, ERD Case No. 9252334 (LIRC, 02/08/94).

Here, the respondents do not dispute that Martinez was aware of the hearing date, but explain that he did not appear because he had recently moved and was busy running his business. Neither of these explanations satisfies the good cause standard.

A party is expected to manage his personal and work lives in a manner which will enable him to prepare for, and to attend, an ERD hearing. See, Wallace v. Laidlaw Transit, Inc., ERD Case No. CR200400852 (LIRC Feb. 24, 2005). The commission has consistently held that parties are expected to take time off from work to attend scheduled hearings. See, Kupferschmidt v. Milwaukee Board of School Directors, ERD Case No. 199551837 (LIRC May 30, 1996); Conner v. Mobile Mini, Inc., ERD Case No. 200301457 (LIRC April 30, 2004).

The record created at the hearing evidences egregious harassment of the complainant by Martinez, and his termination of her for refusing his advances. The complainant clearly sustained her burden to prove the allegations in her charge, and the commission has affirmed the decision of the ALJ to this effect as a result.

 

cc: Attorney Matthew D. Lerner

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

uploaded 2009/03/02