STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARTINS OCHOLI, Complainant

WAL-MART STORES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201003990, EEOC Case No. 26G201100246C


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.

DECISION

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

Dated and mailed July 24, 2012
ocholma . rsd : 110 : 


BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

This case arose from a complaint filed by Martins Ocholi alleging that Wal-Mart Stores discriminated against him because of his race, color, and national origin, and in retaliation for having opposed discriminatory practices.

After investigating the complaint, the Equal Rights Division ("ERD") issued an Initial Determination finding that there was no probable cause to believe that Wal-Mart Stores had discriminated against Ocholi as alleged.

Ocholi appealed that determination, and on March 1, 2012, the ERD issued a Notice of Hearing setting a hearing on his appeal, for 9:30 A.M. on May 1, 2012 at the City Hall in West Bend, Wisconsin.

The information on the Notice of Hearing describing the location where the hearing was to be held, was very clear and prominent. It set out the information this way:

Date: May 1, 2012
Time: 9:30 A.M.
Location: City Hall
1115 S Main Street, 2nd Floor Conference Room
West Bend WI 53095

As shown here, this information was in bold face, so that it would stand out.

At 9:30 A.M. on May 1, 2012, the administrative law judge was present at the hearing location in West Bend, and representatives of Wal-Mart were also present there and were ready to proceed. However, Ocholi did not appear there. Instead, he went to the ERD's office in Milwaukee. He had the Notice of Hearing with him.

The ALJ was notified by the Milwaukee ERD office at approximately 9:55 that morning, that Ocholi was at the Milwaukee ERD office. She spoke to Ocholi by phone and informed him she would wait until 11:00 A.M. for him to get to the hearing location in West Bend. When she was subsequently informed, at around 10:35 A.M., that Ocholi was having difficulty in finding transportation to West Bend, she informed him that she would allow him more time, until 12:00 noon, to get to West Bend. However, at around 12:00 the ALJ received a phone call from Ocholi informing her that he would be unable to make it to West Bend for the hearing. At that time, the respondent moved for dismissal of the case and the ALJ granted the motion.

Ocholi has petitioned for review of the ALJ's decision by LIRC. He argues that he should get another hearing, held in Milwaukee, before a different ALJ.

The rules of the Equal Rights Division provide:

DWD 218.18 Hearings.
. . .
(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.

It is clear that Ocholi failed to appear at a hearing within the meaning of this rule. The rule therefore required that the complaint be dismissed, unless it could be found that he had "good cause" for his failure to appear.

"Good cause" means excusable neglect, that is, the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances. Alvey v. First Student, ERD Case No. 200802323 (LIRC, Aug. 22, 2011). Excusable neglect is not synonymous with neglect, carelessness or inattentiveness. Martin v. County of Milwaukee, ERD Case No. 200304928 (LIRC, Dec. 17, 2004).

It is clear that Ocholi did not have "good cause" for his failure to appear at the hearing. His failure to appear was entirely his own fault. He acknowledged in his petition for review that it was a result of his mistake: "I was not able to get the hearing because I mistakenlly think the hearing was in milwaukee office of Equal Rigth." He obviously did not read or pay any attention to the information on the notice of hearing about the location where the hearing would be held. However, a failure to pay attention to what the notice of hearing says about the location of the hearing does not establish good cause for failure to appear at the hearing. See, McGuire v. Wal-Mart, ERD Case No. ERD Case No. CR200902261 (June 28, 2012).

In a telephone contact with the ALJ on the morning of hearing (well after the starting time for the hearing), Ocholi asked for a postponement of the hearing to another day. The ALJ expressly denied this request. The ALJ explained in her Order, that she denied the request pursuant to Wis. Adm. Code § DWD 218.18(2). This rule states:

DWD 218.18 Hearings.
. . .
(2) POSTPONEMENTS AND CONTINUANCES. All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.

Ocholi's request for a postponement to another day was properly denied. It was not an "emergency" within the meaning of this rule, that Ocholi was in the wrong location on the morning of hearing. An emergency is an event that arises outside of an individual's control. It had been within Ocholi's control, for many weeks prior to the hearing date, to note on the Notice of Hearing what the location of the hearing was, and to take steps to get transportation to that location. Furthermore, given the circumstances here it clearly cannot be said that Ocholi had "good cause" for a postponement when the only reason he needed a postponement was that he had failed to go to the hearing location and he did not have "good cause" for that failure.

In his petition for LIRC review, Ocholi refers to the fact that during telephone contacts on the morning on which the hearing was supposed to have been held, there were some discussions about the possibility of settlement. Ocholi also makes a reference to the ALJ giving him a phone number to do the hearing on the phone. It is not entirely clear what Ocholi's claims are in respect to these matters. However, based on its review LIRC sees no indication that there was anything improper done or said with regard to the discussions that were had concerning the possibility of settlement. Furthermore, the hearing was scheduled to be held in person, and the ALJ had no obligation to convert it to a telephone hearing simply because the complainant, due to his own fault, was not there.

Ocholi also appears to object to the fact that the hearing was set to be heard in West Bend. The Wisconsin Fair Employment Act provides that hearings are to be held in either the county of the respondent's residence or the county in which the discrimination appears to have occurred. Wis. Stat. § 111.39(4). In this case, the Wal-Mart store where Ocholi worked was located in Germantown, Wisconsin, which is located in Washington County. West Bend is located in Washington County. The hearing was properly set in West Bend.

For all the foregoing reasons, LIRC agrees with and affirms the Order of the ALJ.

 

cc:  Jennifer Schilling, Littler Mendelson PC


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uploaded 2012/07/27