ERD Case No. 8800880, EEOC Case No. 26G880888

A hearing on the complaint in this matter was scheduled for December 7, 1989 at 9 a.m. in the State Office Building in Madison, Wisconsin. The Complainant failed to appear. On January 26, 1990, the Administrative Law Judge issued an order dismissing the complaint on the basis of the Complainant's failure to appear and proceed at the hearing. The Complainant filed a timely petition for Commission review in which he asserted that he was unable to attend the hearing because of a medical problem,. Accordingly, the Commission issues the following:


That the Administrative Law Judge' s Order of Dismissal be set aside and that this matter be remanded for a hearing on the issue of whether the Complainant had good cause for his failure to appear at the December 7, 1989 hearing and, if good cause is established, for hearing on the issue of probable cause in the case.

Dated and mailed March 16, 1990

/s/ Kevin C. Potter, Chairperson

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


The facts that the Complainant sought an indefinite postponement of the hearing in late October 1989, on the grounds of his relocation to another state, "current working conditions" and plans to file a federal lawsuit,  and that this request for a postponement was expressly denied by the Administrative Law Judge by way of a letter dated November 17, 1989, raise questions about the Complainant' s subsequent assertion, shortly before the scheduled hearing, that he was unable to attend because of a medical condition. The brevity and indefiniteness of the chiropractor's statement submitted in support of this assertion, only serve to heighten those questions. Nevertheless, the question of whether the Complainant was in fact unable to appear at the hearing due to a medical condition beyond his control is a question of fact. The Complainant' s contention is not rendered incredible on its face by any readily apparent internal contradictions, and it would therefore be inappropriate to reject that contention without providing Complainant an opportunity to prove its truth at a hearing. Therefore, the Commission has considered it necessary to remand this matter for hearing.

At the remand hearing in this matter, the Complainant will bear the burden of proving, by competent evidence and to a reasonable degree of medical certainty, medical facts on which his contention rests.  If the Administrative Law Judge is not satisfied by the evidence presented that the Complainant has met his burden of proof, evidence need not be taken on the underlying issue of probable cause,.

If Complainant requests postponement of the remand hearing, on the basis of an asserted medical inability to attend or on any other basis which, if true, would constitute reasonable grounds for a postponement, the Administrative Law Judge may require the Complainant, to provide such evidence supporting the request as the Administrative Law Judge determines, in his or her discretion, is appropriate. See, Ludwig v. Eau Claire County Sheriff's Department (LIRC, January 31, 1990).


cc: Atty. Thomas Crone

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