MARY ELIZALDE, Complainant
TEAMSTERS GENERAL LOCAL #200, Respondent
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.
Administrative Law Judge Rose Ann Wasserman predetermined the outcome of my hearing scheduled for October 11, 2011 based on our conversation in September 2011.
Teamsters General Local #200 (Respondent) has failed to provide me with my last and final pay.
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.
On September 26, 2011, I reviewed the file in the case, which was scheduled to go to hearing before me on October 11 , 2011. I noticed that the Complainant's current mailing address was in California, and that she had apparently moved there since filing her complaint in March of 2010, when her mailing address was still in Menomonee Falls, Wisconsin. Given the fact that Ms. Elizalde had moved out to the West Coast since filing her complaint, I decided to contact her to determine if she still intended to pursue this case and was intending to travel back to Wisconsin for her hearing on October 11th.
When I looked in the file, I noticed that the only phone number we had for Ms. Elizalde was (262)352-2665, which I assumed was no longer her number since it has a Wisconsin area code. So I looked in the file to see if Ms. Elizalde had provided the name of a contact person. I looked at the "Equal Rights Complaint Process Information Sheet" that she had filed at the time she filed her complaint, and saw that she had listed her daughter, Christina Gonzales, who lives in Menomonee Falls, Wisconsin, as her contact person (the information sheet asks for the number of "someone who does not reside with the Complainant but who will know where to reach the Complainant").
I then called her daughter's phone number. She did not answer, so I left a voice-mail message identifying myself and stating the purpose of my call. I explained that her mother had provided her name to the Equal Rights Division as her contact person. I said that I did not have her mother's number in California, so I was calling her to get in touch with her mother, to inquire whether she was planning to attend a hearing that was scheduled to take place in Milwaukee on October 11th. I said that I would appreciate it if she could either provide me with her mother's current phone number or have her mother call me.
Later on September 26, 2011, I called the Respondent's attorney, Scott Soldon, so that he would be aware of the fact that I had attempted to contact the Complainant to find out if she intended to appear at the hearing. I told him I had left a voice-mail for the Complainant's daughter, and that I would call him back later if I was later informed that the Complainant had decided not to proceed with her case. I also explained that the hearing would proceed as scheduled on October 11th unless I get something in writing from the Complainant indicating that she did not intend to appear at the hearing.
The next day, September 27, 2011 , I received a call from the Complainant, Mary Elizalde, who said her daughter had given her my message. I then explained to Ms. Elizalde that I wanted to get in contact with her to find out if she was planning to attend the hearing on October 11th given the fact that she had moved out of state since filing her complaint. I also explained that I called her daughter, rather than her, because I did not have her current phone number in California; Ms. Elizalde then explained to me that even though she now lived in California, she still used the same phone number as before, (262) 352-2665, which is a cell phone number.
During our conversation on September 27th Ms. Elizalde told me that she had not yet decided whether she would be coming to the hearing in Milwaukee on October 11th. She said she had not yet gotten a plane ticket but still had time to do so. She also said that she would call me sometime before October 11th to let me know whether or not she would be coming to Wisconsin for the hearing.
During our conversation I explained to Ms. Elizalde that if she failed to appear at the hearing, her complaint would have to be dismissed, and she indicated that she understood that.
Ms. Elizalde also asked if I had gotten an exhibit and witness list from the Respondent's attorney yet, and I said that I had not, but that since it did not have to be filed until 10 days before hearing, the list was not due for another few days.
We also discussed the fact that she did not currently have an attorney representing her, but I do not recall who brought up the subject. I do recall her indicating that she was interested in possibly retaining an attorney, at which point I informed her that the Equal Rights Division (ERD) has an attorney referral list. I offered to mail her a copy of the list, which contains the names of attorneys interested in handling cases before the ERD. However, since the hearing was only about two weeks away, Ms. Elizalde asked if she could get access to the attorney list online, rather than having to wait to get it in the mail. I said that I did not know if the attorney list was on the ERD website, but I would her speak to one of the clericals in our office who would know how she could get access to the attorney list online.
Later on September 27, 2011, I spoke to Kathy Braun, a clerical assistant in our office. She told me that she had had a telephone conversation with Ms. Elizalde that day regarding Ms. Elizalde's request for a copy of the ERD attorney referral list. Kathy told me that after her phone conversation with
Ms. Elizalde, she sent her an email message containing a link to the attorney referral list. I have attached a copy of
Kathy Braun's email to this memo. The email was sent to
Ms. Elizalde on September 27th at 6:02 pm.
After my conversation with Ms. Elizalde on September 27th, I never heard from her again, either by phone or in writing
Attachment: Email from Kathy Braun to Mary Elizalde, dated September 27, 2011.
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 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
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
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(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 http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_8240_p.pdf
(3)( Back ) See, http://dwd.wisconsin.gov/lirc/e762~3--.htm#765 .
(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).