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


SHEILA COUNARD, Complainant

CREST CADILLAC INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199903693, EEOC Case No. 26GA00080


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 January 25, 2001
counash.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

By notice mailed to the parties dated August 28, 2000, the Equal Rights Division scheduled a probable cause hearing for 9 a.m. on November 1, 2000 (Wednesday), in Waukesha, Wisconsin, on the complainant's discrimination claims. The complainant apparently contacted the ALJ sometime during the week before the November 1 hearing date and requested a different hearing date on the ground that she had a "conflicting court date" in another matter that she could not change. The ALJ apparently requested that the complainant furnish evidence of the conflicting court date before agreeing to postpone the ERD hearing date.

In correspondence addressed to the ALJ and received by the division on October 30, 2000, the complainant enclosed information regarding her "conflicting court date." The information regarding the "conflicting court date" that the complainant enclosed with her October 30 correspondence showed that this alleged "conflicting court date" was actually only a scheduling conference set for November 3, 2000, at 3:20 p.m. that was to be conducted by telephone. The October 30 correspondence must have been prepared during the previous week because the complainant informed the ALJ that she was going to another city on Thursday to help her mother get her cabin ready for the winter and would not be back until Tuesday, the day before the ERD hearing. The complainant notes in the first sentence of the October 30 correspondence that she knows the ALJ would not receive the correspondence until October 30. Finally, her correspondence also noted that she was "having problems" getting information from the respondent to help her claim.

Although the complainant had not been notified that the November 1 scheduled hearing had been postponed she failed to appear for the hearing. The ALJ therefore issued a decision dismissing her complaints for failure to appear at the scheduled hearing.

On appeal the complainant requests that her case not be dismissed. However, this request must be denied, as she has not shown good cause for her failure to appear for her scheduled hearing. While the complainant claimed to have had a conflicting court date, that matter only involved a scheduling conference that was to be held via telephone two days after the ERD hearing. The complainant also asserts that it would have been nice to have been given more than one day's notice that the case would not be rescheduled, and that she had advised the ALJ that she was unavailable until Tuesday evening as she was out of town. However, it was the complainant who failed to submit information regarding her other matter until October 30 and who chose to be out of town until Tuesday, October 31. The complainant's assertion about having been "denied access to necessary papers" from the respondent similarly fails to justify reopening this matter. It is not known when the complainant first sought to obtain this information, nor the reason that she was denied such information, if that is indeed the case. Assuming there had been a timely request for information and a denial of same by the respondent, however, this issue could have been addressed at the scheduled hearing in view of the complainant's late notice of this issue. At that time, if it were found that the complainant had been improperly denied requested information which thereby prejudiced her case, the ALJ could have rescheduled the hearing to a date after the respondent's submission of the requested information.

cc: Alan E. Seneczko


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uploaded 2001/01/26