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



ERD Case No. CR200003827, EEOC Case No. 26GA10213

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.


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

Dated and mailed December 10, 2002
hamilwi . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


The complainant failed to appear in person or by representative for the scheduled June 26, 2002 hearing regarding his complaint of disability discrimination. As a result, the ALJ dismissed the complainant's complaint.

On appeal the complainant argues that his complaint should not be dismissed, that instead the commission should remand this case for a hearing on whether his reasons for not being present at the June 26, 2002 hearing excuse his absence.

The complainant has presented an offer of proof to show what he would prove at the remand hearing. The complainant asserts as the offer of proof that on June 25, 2002, his former attorney, Anne Shindell, told him the hearing was adjourned. The complainant asserts that Shindell told him there was an offer to settle on the table and that she would call him the following day with information regarding the settlement offer. The complainant asserts that Shindell did not call him back and that he did not know the hearing had not been adjourned until he received the ALJ's June 27, 2002 decision dismissing his case.

The complainant references, as relevant information, a June 24, 2002 letter in the case file that the respondent's Elizabeth Ceriello faxed to the ALJ requesting postponement of the hearing. The complainant notes that the stated reasons for the postponement request were that on June 17, 2002, Shindell stated she would not object to a request for a postponement and that the parties had had a positive conversation with respect to resolution of the matter during the June 17th conversation.

Additionally, the complainant states that the record of the hearing on June 26, 2002, shows that the ALJ attempted to call Shindell to tell her that the respondent's request to postpone the hearing was denied, but he could not reach her and had to leave a message on her answering machine. The complainant states that the hearing record does not show, however, that any attempt was made to notify him that the request for postponement was denied or that he had to appear at the hearing.

The complainant acknowledges that the commission has ruled that a party who is dissatisfied with his attorney cannot use a claim of inadequate representation as grounds for reversing the dismissal of a complaint. The complainant argues, however, that the issue in this case is different. The complainant argues that he bases his argument on the claim that he, not his former attorney, is blameless in his failure to appear at the hearing. The complainant argues that any reasonable person, knowing what he knew, would have assumed that the hearing had been postponed; that the respondent requested the postponement, his lawyer told him the hearing was postponed and that no one told him otherwise until after the case was dismissed. The complainant argues that he failed to appear for the June 26, 2002 hearing through no fault of his own. As authority for the commission to remand his case, the complainant cites Kemp v. RJ Heinen Inc. (LIRC, 10/27/00), arguing that the commission has recognized that a party who, through no fault of his own, does not know of an obligation to appear should not be penalized with dismissal.

The commission is not persuaded by the arguments of the complainant.

First, the commission's decision in Kemp does not support the complainant's argument for a remand of his case. In Kemp the ALJ dismissed the complainant's complaint as a sanction for failing to appear for his deposition. There the commission found that a remand was necessary because the complainant asserted that he never received notice of the deposition and because the ALJ had dismissed Kemp's complaint without ever addressing the complainant's stated reason for his failure to appear. There is no allegation by the complainant in the instant case that he did not receive notice of the hearing. He did have knowledge of the hearing date and he discussed it with his attorney. Instead, the sole reason for the complainant's failure to appear for his hearing relates to what his former attorney allegedly told him -- that the June 26, 2002 hearing had been adjourned. However, the hearing never was adjourned. As the record clearly shows, when the ALJ received the June 24, 2002 fax from the respondent requesting a postponement he denied that request and telephoned the complainant's attorney to inform her that the requested postponement of the hearing was denied.

Second, where the actions of an attorney adversely impact on a complainant who retained that attorney, the commission has consistently held that the actions by the attorney do not provide a basis for setting aside an ALJ's decision and granting a further hearing. See for example, Squires v. Montex, Inc. (LIRC, 03/15/02) (Party's disappointment with her attorney's representation of her is not a basis for setting aside ALJ's decision); Patek v. Waukesha Engine Div., Dresser Industries (LIRC, 08/31/95)(Party's assertion of inadequate legal representation by counsel is not an adequate basis for setting aside ALJ's decision or granting rehearing); Neuberger v. Twin City Storm Sash Co. (LIRC, 01/22/92)(Failure to provide complainant with proper representation is not an adequate basis for setting aside the ALJ's decision and for granting a rehearing). Any misinformation that the complainant received regarding the June 26 hearing was from his attorney. It was not due to any fault on the part of the respondent or the ALJ. The commission believes, as stated by the court in Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284, 470 N.W.2d 859 (1991), that it is more equitable to allow the adverse consequences of an attorney's actions to fall upon the shoulders of the party who has chosen the attorney, rather than on the adversary and other litigants who await their day in court. Further, as also noted by the court, the complainant has a possible remedy in a malpractice action, particularly when the dismissal is entirely attributable to his attorney's conduct. Id. at 285.

Accordingly, the commission denies the complainant's request for a further hearing and affirms the ALJ's dismissal of his complaint.

Attorney Thomas Nelson
Attorney Michael J. Cieslewicz

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uploaded 2002/12/23