P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARY ELIZALDE, Complainant


ERD Case No. CR201001257, EEOC Case No. 26G201000994C

This case arose out of a March, 2010 complaint alleging discrimination in pay because of sex. After an initial determination of no probable cause and an appeal of that initial determination, a notice of hearing was issued setting the matter for hearing on October 11, 2011.

The complainant failed to appear at the hearing on October 11, 2011. Subsequently, the ALJ issued an order which dismissed the complaint based on the complainant's failure to appear at the hearing.

The complainant then filed a timely petition for review of the ALJ's decision by the commission. (1)  In that petition for review, the complainant stated:

This letter constitutes as a formal request of a Petition for Review by the Labor and Industry Review Commission.

On or about September 27, 2011 Administrative Law Judge Rose Ann Wasserman contacted my daughter, inquiring if I was intending on appearing on October 11, 2011. I returned her call and voiced how surprised I had been that first she would call my daughter and not me. I also expressed concern as to the reason she was calling me, inquiring if I would be appearing as scheduled. I told Judge Wasserman that I had every intention to appear in her court on October 11, 2011 and I didn't understand why she would think otherwise. She asked if I had an attorney and I told her that I was representing myself and had been for over a year. This question was odd but the underlining suggestion was obvious. If you are not represented then you lose.

In the same conversation I asked if the Respondent had provided her with their list of witnesses and exhibits, etc. She said they had not, but that they had time yet to file. It seemed odd that a few days later I received the Respondent's list. It was obvious that the Attorney for the Respondent and Wasserman were conversing and after Wasserman had confirmed that I was to appear, Attorney Soldon provided the documents.

In my opinion the entire conversation was to persuade me to drop the case. I feel Wasserman had predetermined her decision on this matter. Being discouraged by the turn of events, I failed to appear.

On November 3, 2011, I requested from my previous employer (Respondent) that my last and final check be reissued due to the date of the original check was past the 60 day window for cashing (coy attached). After receiving no response, on December 16, 2011, I again contacted my previous employer (Respondent) via e-mail (copy attached) advising them that I would be filing an Appeal and would bring to the courts attention the fact that they are refusing to issue my last and final check. To this date I have not received payment.

Summation: The following should qualify as reasons for a new hearing date and a new Administrative Law Judge to hear the case.

I await your decision.

On December 22, 2011, the ALJ wrote and placed in the file in this matter a memorandum, which stated:

I am writing this memo to memorialize my recollection of my telephone conversation with Mary Elizalde, the Complainant in the above-captioned case, on September 27, 2011, as well as a conversation I had with Respondent's counsel, Scott Soldon, the day before. When writing this memo I referred to the handwritten notes that I made at the time of those conversations.

Attachment: Email from Kathy Braun to Mary Elizalde, dated September 27, 2011.  (2) 

Discussion -- Failure by a party to appear at an ERD hearing is governed by Wis. Adm. Code § DWD 218.18, which provides in relevant part as follows:

(4) FAILURE TO APPEAR AT HEARING. 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 the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. 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.

A complainant whose case has been dismissed for failure to appear at a hearing must demonstrate, on appeal, that there was good cause for the failure to appear. Good cause has been defined to mean either that the failure to appear was the result of excusable neglect (i.e., the degree of neglect a reasonable, prudent person might be expected to commit in similar circumstances), or 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. The failure to appear for the hearing must be explained with a degree of specificity adequate to allow a reasoned assessment by the decision-maker of whether it is probable that good cause could be established. Schwarz v. Gateway Tech. College (LIRC, 04/23/10).

The complainant argues that her telephone contact with the ALJ described in her petition shows that the ALJ had pre-determined the outcome of the hearing, and that for this reason (and another, unrelated reason; see the NOTE below), she should be given a new hearing date before a different ALJ. For the following reasons, the commission does not agree.

The commission does not find it surprising, or inappropriate, that the ALJ sought to contact the complainant to determine if she still intended to appear at the hearing. As is reflected by the sheer number of decisions summarized in the Wisconsin Equal Rights (ER) Decision Digest under the topical heading "Failure To Appear At Hearing,"  (3)  failures by parties to appear at scheduled hearings before the Equal Rights Division have long been, and continue to be, a significant challenge to calendaring the many cases which that division is called upon to hear. It is understandable and appropriate that ALJs with crowded hearing calendars take an interest in identifying cases in which this appears to be a risk, so that they can if possible resolve any such situations ahead of time and thereby save the time of the ALJ and of the parties involved.

It is not uncommon to find that a failure to appear at hearing involves a situation in which complainants have moved or traveled some distance far from Wisconsin.  (4)   It is also not uncommon to find that a failure to appear at hearing involves a situation in which the non-appearing party was unable to secure counsel and chose not to appear for that reason. (5)   It is thus understandable that in cases where such factors are present, an ALJ may seek to clarify the parties' intentions prior to the day of hearing. The ALJ here had an understandable reason to try to confirm the complainant's intent to appear, and the commission sees nothing suspect about her having done so.

The commission also does not find the fact that the ALJ initially contacted the complainant's daughter, to be surprising or inappropriate. On the "Equal Rights Complaint Process Information Sheet" which the complainant had completed when she filed her complaint, she provided her daughter's name and contact information in response to the form's request for such information for a person who would know where to reach the complainant. Knowing that the complainant had moved to California, and that she had not provided the ERD with a different telephone number than the one she originally provided when she lived in Menomonee Falls, it was not unreasonable of the ALJ to resort to the complainant's designated contact person as a way to try to contact her.

The commission also does not find anything odd in the fact that the respondent's witness and exhibit list was filed and served on September 29, just a few days after the September 27 telephone call between the ALJ and the complainant. The hearing was scheduled for October 11, 2011, and thus, the parties' witness and exhibit lists were required to be served and filed by September 30, 2011. See, Wis. Adm. Code § DWD 218.17. The commission sees no reason to doubt that counsel for the respondent was already aware of this requirement, and it also sees no reason to doubt that the fact that he filed the witness and exhibit list when he did was simply a reflection of when it was due.

In sum, the commission finds nothing in the contact between the complainant and the ALJ which would have provided any basis for the complainant to believe that the ALJ was not impartial or that the ALJ had pre-determined the outcome of the case. The complainant's choice, based on her unremarkable contact with the ALJ, to abandon her pursuit of the case, was not what a reasonably prudent person would have been expected to do in similar circumstances. It did not amount to circumstances beyond the complainant's control or which would otherwise have prevented or made it unreasonable for her to appear. Therefore, the complainant has not showed "good cause" for her failure to appear at the hearing. Pursuant to Wis. Adm. Code § DWD 218.18, the dismissal of the complaint was therefore appropriate. On that basis, the commission issues the following:


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

Dated and mailed February 21, 2012
elizalde . rrr : 110 : 


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


NOTE: In her petition for review, the complainant also asserts as a reason that she should get a new hearing date before a different ALJ, a claim that the respondent did not comply with her request that it re-issue her final paycheck. This argument has no colorable merit. Considering that the complainant's request to the respondent that it re-issue her last paycheck was made by her in November, 2011, it is obvious that the matter could have had nothing to do with the complainant's reasons for not appearing at the hearing on October 11, 2011. Also, even if the request and alleged failure to re-issue the check had occurred before the hearing, nothing about the situation would have provided any justification whatsoever for the complainant to refuse to attend the hearing.

cc: Scott D. Soldon, Attorney for Respondent

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


(1)( Back ) The ALJ's order of dismissal was originally issued on November 14, 2011. It was re-issued on December 2, 2011, because the original order had been sent out undated. This gave the complainant a new appeal deadline of December 23. Her petition for review was filed on December 21, 2011, and it thus met that deadline.

(2)( Back ) The sole content of this e-mail, a copy of which was attached, was a link to the ERD's Attorney Referral List, at

(3)( Back ) See, .

(4)( Back ) See, e.g., Amos v. McDonald's, ERD Case No. CR200600319 (LIRC, May 25, 2007) (compl. in MS); Love v. Cullen, ERD No. CR200800833 (LIRC, June 26, 2009) (compl. in AR), Beasley v. OIC-GM, ERD No. 200304356 (LIRC, Oct. 12, 2004) (compl. in MS), Amaya v. Newcap, ERD Case No. 8102673 (LIRC, July 20, 1982) (compl. in TX), Schilling v. Walworth Co., ERD Case No. 8204712 (LIRC, March 9, 1983) (compl. in NY), Jones-Browning v. Woodmans, ERD Case No. 8802892 (LIRC, Sep. 27, 1990) (compl. in CA).

(5)( Back ) See, e.g., Alexander v. Unified Solutions, ERD Case No. CR200201647 (LIRC, Jan. 31, 2003); Whitt v. Alterra Wynwood, ERD Case No. CR200400065 (LIRC, July 15, 2005); Jaskolski v. M & I Data Services, ERD Case No. 8851055 (LIRC, May 23, 1990); Chyphes v. Franchise Food Service, ERD Case No. 200601195 (LIRC, Oct. 19, 2007).


uploaded 2012/02/22