MARY ELIZABETH FELZKOWSKI, Complainant

TWO BEERS BAR & GRILL, Respondent

An administrative law judge (ALJ) for the Equal Rights division of the Department of Workforce Development issued a decision in the above-captioned matter on November 5, 2009, dismissing the complainant's complaint based on her failure to appear and proceed at the scheduled hearing on her discrimination complaint. The complainant filed a timely petition for commission review.

Based upon a review of the matter, and for the reasons stated in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission issues the following:

Dated and mailed December 23, 2009
felzkma . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On August 27, 2009, the Equal Rights Division issued a Notice of Hearing on the Merits of Mary Felzkowski's discrimination complaint, which advised the parties that a hearing would be held on the complaint on October 30, 2009, at 9:00 a.m. in Wausau, Wisconsin.

Previously, in a letter to the ERD dated August 19, 2009, as a follow up to a conversation with the ERD's Hearing and Mediation Section Chief, Felzkowski had requested that her case be expedited due to financial and other reasons. In this letter, Felzkowski also noted that she had requested mediation of the case "for I am not mentally able to sit in a court room across from the other party, at the unemployment hearing I was not at all in good shape and I don't know if I can go thru that again." Apparently, Felzkowski had not yet received the written notice from an ALJ dated August 13, 2009, stating that the respondent was not interested in mediation at this time.

In any case, in subsequent correspondence to the ERD dated September 24, 2009, in addition to responding to the respondent's answer to the allegations of her complaint, Felzkowski indicated that she would be bringing two witnesses to the hearing and she stated, "As far as I am concerned I will be in court on October 30th 2009."

On October 30, 2009, when Felzkowski had not appeared for the hearing by 9:30 a.m., the ALJ stated that Felzkowski's complaint would be dismissed based on her failure to appear for the hearing.

Apparently, Felzkowski arrived at the hearing shortly after the ALJ had dismissed her complaint and the ALJ and the respondent had departed.

In a letter addressed to the ALJ dated October 30, 2009, and received at the ERD on November 2, 2009, Felzkowski explained the reason for her failure to appear for the scheduled 9:00 a.m. hearing. Felzkowski apologized for being tardy for the hearing and stated, in part, as follows:

My morning started out at 5am and I began to go over my notes and letters pertaining to this case. As I left my home in Athens and started to travel to Wausau Wi, my thoughts were only on this case and getting there on time. It was approximately for me a 50 minute drive before I went to pick up Dottie Leist, whom was coming on her own free will to appear with me in this court.

Once I got to her house I started having a panic attack, It was like I could not move, and could not breathe, I felt as if I was reliving this all over again, as you can tell by the notes of my unemployment case, I was very distraught and upset during that period.

After the loss of my job [at Two Beers Bar & Grill] in January [2009], as you can also read I was unable to [function] a normal life style and as it states I did not leave my home for several weeks after that!

That's how I felt this morning once I hit my destination point before driving in to your court room.
. . .
I am also going to be seeking out some sort of counseling to help me with my daily living and how to take control when these panic attacks occur.
. . .
I understand that you and the other parties waited for one half hour for me and made a decision. I was a block away from the building and it was 9:32am.
. . .
Oh and to bring up Dottie Leist, she could not drive for me at this time she only has an occupational license. During my panic attack, I did not see it to be a safe decision at the moment to be driving. I waited until I could get my [breath] back and be in control.

Wisconsin Administrative Code § DWD 218.18(4) provides as follows:

If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint....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.

On November 5, 2009, the ALJ issued a written decision dismissing Felzkowski's complaint based on her failure to appear and proceed at the hearing, scheduled to be heard at 9:00 a.m. on October 30, 2009.

In her petition for review, Felzkowski again asserts that she missed the hearing due to the panic attack and anxiety she had on the morning of the hearing at Dottie Leist's home. Felzkowski states that the panic attack delayed her driving the remainder of the way to the hearing by some 30 to 45 minutes.

Felzkowski states that she has had this illness since January 2009 and all this time she has not been in for treatment due to financial reasons, but she decided to take her chances and seek medical help, as she has realized that this situation has affected her in a very bad way. Felzkowski has enclosed a medical report from her doctor and a notarized letter from Dottie Leist.

Leist indicates in her letter, among other things, that Felzkowski came to pick her up on the morning of the hearing, that she only has an occupational driver's license, that Felzkowski came in to use the bathroom and that when she checked on Felzkowski she found Felzkowski looking pale, shaking and breathing rapidly.

The doctor's report indicates that Felzkowski was seen by the doctor on November 5, 2009. The doctor's report indicates that Felzkowski provided the doctor with some of the same information that she has set forth above, such as being unable to leave her house "for the first 6 weeks after quitting her job" in January. The doctor's report also indicates that on the day of scheduled hearing in this matter, Felzkowski almost could not leave Leist's bathroom; that Felzkowski "became sweaty, trembly with her heart racing." The doctor's report lists depression and anxiety as the assessment for Felzkowski. The doctor's report indicates that he has prescribed medication for Felzkowski for these conditions.

Felzkowski has shown good cause in writing for her failure to appear for the scheduled hearing on her complaint. There were circumstances beyond Felzkowski's control which otherwise prevented or made it unreasonable for her to appear for the scheduled hearing on her discrimination complaint. Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).

cc: Attorney Matthew E. Yde

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