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

CHRISTINA CONTIZANO, Complainant

D & G MAIN STREET LTD, Respondent A

ANTHONY CONDOS, Respondent B

GEORGE CONDOS, Respondent C

FAIR EMPLOYMENT DECISION
ERD Case No. 199902391, EEOC Case No. 26GA00296

A notice of hearing was issued by the Equal Rights Division on April 5, 2000, scheduling a hearing for July 19, 2000, on the merits of the complainant's complaint of discrimination in this matter. The division's copy of the notice contained in the file indicates that the hearing notice was mailed to the parties, including the complainant and her attorney.

On July 20, 2000, the administrative law judge issued a decision ordering the dismissal of the complainant's complaint based upon her failure to appear for the scheduled hearing. The very next day, the complainant filed with the division by facsimile transmission a letter stating that she had never received any notice to appear for the hearing and that all she had received was the ALJ's dismissal of the case for failure to appear. The complainant states that she would have appeared for the hearing had she received notice and that she had been "fighting this case for over a year." Further, the complainant states that her attorney had never notified her of the notice regarding the hearing date, and that she had not heard from her attorney since March.

Wisconsin Administrative Code § DWD 218.18(4), 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, 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 failure to appear for the scheduled hearing due to a failure to receive notice of that scheduled hearing would certainly amount to good cause for a party's failure to appear. There is nothing in the division's case file indicating that the copy of the notice shown by the file to have been mailed to the complainant was ever returned by the post office. However, there is also nothing in the file that indicates any reason or basis for disputing the complainant's assertion that she never received notice of the hearing. Further, regarding the complainant's assertion that she had not heard from her attorney since March, and the cause for this lack of communication, this would appear to bear little significance since Wisconsin Administrative Code § DWD 218.11(1), provides that ".the department shall advise the parties and their representatives and attorneys of record in writing by first-class mail, of the specific time, date and place established for hearing." (Emphasis added).

In the instant case the question of whether or not the complainant had good cause for failure to appear at the hearing would best be resolved at a hearing.

The Labor and Industry Review Commission therefore issues the following:

ORDER

The ALJ's decision dismissing the complainant's complaint is set aside and this matter is remanded to the Equal Rights Division for a hearing and determination as to whether the complainant had good cause for failure to appear at the scheduled hearing, and a hearing on the merits of her complaint should she establish good cause for her failure to appear.

Dated and mailed September 28, 2000
contich.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc:
Christina Contizano
Timothy P. Swatek

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