GUY C SEMELKA, Complainant

CITY OF MADISON , Respondent

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.

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

Dated and mailed April 23, 2009
semelgu . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant failed to appear for the scheduled January 23, 2009 hearing on his complaint of alleged discrimination. Based on the complainant's failure to appear, the ALJ issued a decision dismissing his complaint.

In his petition, the complainant asserts he is requesting a review because he was misinformed by the DWD office that he did not have to appear at the hearing. The complainant asserts:

On September 29, 2008, the person on the phone told me that since I appealed this case to the Federal level, I did not have to be present at the January hearing.

I was also informed that the judge would ONLY be reviewing the paperwork. Based on the phone conversation with DWD, I had no reason to believe that I could submit other evidence, witnesses or testimony for the January Hearing or that I needed to appear in person. This is the real reason I did not appear.

In the meantime, I had submitted documents that I wanted entered into the file, on October 18, 2008 so that they would be included.

Based on my past history with the case, prior to this January hearing, I have always completed all of the procedural requests and met the timeliness, including any appeals that were offered to me. So based on my own past practice, and the DWD's misleading information or advice, I was denied my legal right to appear at this hearing.

For the record, I had submitted documents on October 18, 2008, so that they would be included. Since, I had submitted documents on October 18, 2008, that I wanted entered into the file. Please consider this and reschedule a hearing.

A complainant whose complaint has been dismissed for failure to appear at the hearing may have the hearing reopened provided the complainant 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. Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).

The commission is not persuaded that the complainant has shown good cause for his failure to appear at his January 28, 2009 scheduled hearing. First of all, all of the written information about the hearing that the ERD sent to the complainant, including information about the hearing contained in the Initial Determination, the Certification to Hearing notice, the Notice of Hearing and the enclosed EEOC letter, was completely contrary to the alleged September 29, 2008 statement by a person at the DWD office that he did not have to appear at the hearing.

The no-probable-cause Initial Determination issued on the complainant's complaint included the following notice: "If the Complainant files a timely appeal, this case will be certified for a formal administrative hearing....A notice of hearing stating the date, time and place of hearing will be sent to the parties....At the hearing, the parties will be given the opportunity to present evidence to support their cases." (Emphasis added.)

On February 22, 2008, after the complainant filed an appeal, the ERD issued a notice to parties certifying the case for a hearing. This notice included the following information:

A hearing will be scheduled before an Administrative Law Judge in the Hearing and Mediation Section. A Notice of Hearing will be mailed to you at least 30 days prior to the scheduled hearing date....

At the hearing, you should be ready to offer testimony and evidence to support your case. You or your attorney should arrange to have any witnesses present you feel will help to prove your claim. If a necessary witness is reluctant to appear, you may subpoena that witness....You should make arrangements for witnesses and subpoenas as soon as you receive the notice of hearing.

If you have any questions, please contact the Hearing and Mediation Section at the address above. (Emphasis added.)

On September 26, 2008, the ERD mailed the Notice of Hearing to the parties. The Notice of Hearing advised the parties that a hearing would be held on January 23, 2009, at 9 a.m. at 201 E Washington, Room B-103, in Madison, Wisconsin to determine whether there was probable cause to believe the respondent violated the Wisconsin Fair Employment Law. An enclosed information sheet advised the parties of their rights and responsibilities in the hearing process. Among other things, the information sheet advised the parties that by no later than ten days before the date of the hearing, each party must send the other party-and file with the division-a list of any witnesses and copies of any documents they may want to use at the hearing. It also advised the parties that if they had any questions to contact the administrative law judge assigned to the case. The case file also shows that a letter from the Equal Employment Opportunity Commission (EEOC) was included with the ERD's Notice of Hearing that was sent to the complainant. The EEOC's letter states, "You were informed when your charge was filed that it is your obligation to cooperate with the State Agency during their investigation of your charge. If you fail to show for the scheduled hearing, EEOC may also dismiss your charge." (Emphasis added.) Also attached to the face of the ERD's Notice of Hearing was a note to the parties that they should direct all inquiries/filings regarding the case to ALJ Deborah Little Cohn. ALJ Cohn's mailing address and telephone number was listed on this note.

In addition, the case file contains a letter from counsel for the respondent dated January 13, 2009, in which counsel identifies the potential witnesses the respondent may want to call and the potential exhibits it may want to introduce at the probable cause hearing. Counsel's letter indicates that a copy of this letter was sent to the complainant with enclosures.

Furthermore, given that all of the written information the ERD had provided the complainant about what was to occur at the probable cause hearing was contrary to the alleged September 29, 2008 information that he did not have to appear at the hearing, it is inexplicable as to why the complainant did not contact the ALJ for a clarification about whether it was necessary for him to appear for the hearing. The complainant had nearly 4 months to make this inquiry.

Second, the complainant's assertions on appeal appear to be inconsistent. The complainant first asserts that he was informed that "the judge would ONLY be reviewing the paperwork"; that "Based on the phone conversation with DWD, I had no reason to believe that I could submit other evidence, witnesses or testimony for the January Hearing..." (Emphasis added.) However, the complainant then asserts that he "submitted documents that I wanted entered into the file, on October 18, 2008 so that they would be included."

Third, a review of the case file fails to disclose the alleged October 18, 2008 documents the complainant asserts he submitted to be entered into the file.

Finally, the case file shows that by letter dated January 13, 2009, counsel for the respondent mailed to complainant notice of the names of the individuals the respondent might call as witnesses at the probable cause hearing and the potential exhibits that it might introduce at the hearing. It is not known for certain whether or not the complainant received the respondent's January 13 notice since the ALJ's subsequent January 28, 2009 decision dismissing the complainant's complaint was returned to the ERD by the Post Office with a note indicating that the complainant had moved and left no forwarding address. Assuming the complainant did receive the January 13 letter from the respondent, this served as additional notice to him that the testimony of witnesses would be received at the hearing on his discrimination complaint. Regardless of whether or not the complainant had received the respondent's January 13 letter, however, for all of the other above-stated reasons, the commission is not persuaded that the complainant has shown good cause for his failure to appear for his scheduled January 23, 2009 hearing.

cc: Attorney Steven C. Zach

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

uploaded 2009/04/27