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



ERD Case No. CR200204189

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.

Based on its review of this matter, and for the reasons stated in the Memorandum Opinion below, the commission issues the following:


That the decision of the administrative law judge issued on October 30, 2003, be set aside, and that this matter be remanded to the Equal Rights Division for hearing on the merits of the complainant's charge.

Dated and mailed June 25, 2004
casetka . rrr : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


The following procedural history is relevant here:

You waited until there was inadequate time prior to the hearing for the Respondent to respond to your discovery request. If your condition changed as of October 7, 2003, you will need to get a letter from your doctor stating: (1) what your condition was prior to October 7, 2003, and whether your condition made you unable to prepare for hearing; (2) how your condition has changed on October 7, 2003; (3) whether your current condition prevents attending or preparing for the hearing; (4) how long your current condition is expected to last; and (5) when you would be able to prepare for and testify at a hearing. Upon receiving such a letter, I will re-evaluate your request.

With respect to ERD hearings, Wisconsin Administrative Code § DWD 218.18 provides in relevant part as follows:

(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.
. . .
(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.

The complainant failed to show good cause for her October 2 postponement request. The complainant did not present her request within 10 days of the notice of hearing, and her explanation that she needed additional time to prepare does not qualify as an "emergency circumstance" within the meaning of Wis. Adm. Code § DWD 218.18(2). The complainant was provided sufficient time to conduct discovery and to otherwise prepare her case for hearing, and the ALJ properly concluded in his letter of October 7 that her apparent lack of diligence in doing so did not justify granting her postponement request. Tang-Nguyen v. Leather Limited, ERD Case No. 199704705 (LIRC June 30, 1999).

As a result, the ALJ was justified in viewing with some skepticism the new explanation offered by the complainant on October 14 to the effect that she had developed a health condition the week before which prevented her from preparing for, or participating in, a hearing; and was justified in requesting on October 20 that she provide medical verification of this condition.

Six days after receiving the complainant's October 14 postponement request and three days prior to hearing, the ALJ notified the complainant, by mailing a letter to her home address, that, based on the information she had provided, he was denying her October 14 postponement request; requiring medical verification of the change in health status she referenced in that request; and stating that, upon receipt of such medical verification, he would re-evaluate her request. Upon receiving this correspondence from the ALJ, the complainant apparently contacted her treating physician immediately, and FAX'd to ERD, to the ALJ's attention, a prescription form on which the physician answered each of the ALJ's questions except those relating to how the complainant's condition had changed on October 7, and an accompanying writing in which the complainant explains that the change in her health status arose on October 6 and prevented her from preparing for hearing. The ALJ apparently did not re-evaluate the complainant's postponement request in light of this new information and, in fact, apparently did not contact the complainant after its receipt, but instead convened the October 23 hearing, at which the complainant did not appear, and dismissed the case seven days later. (1)

The commission concludes that the medical information provided by the complainant satisfied the good cause standard, particularly given that it was provided on very short notice; and that the ALJ should have granted the October 14 postponement request as a result. The complainant's treating physician states, two days before the scheduled hearing, that she was recommending that the complainant's administrative hearing be delayed for a minimum of four months. The clear implication is that, as of that date, the complainant's physician believed that it would be detrimental to the complainant's health for her to participate in the hearing process for a period of at least four months. This is not analogous to situations, for example, in which the complainant has scheduled elective surgery on the date of hearing after the other bases he offered for his postponement request were rejected by the ALJ (Reed v. Choice One Communications, ERD Case No. 200200440 (LIRC Feb. 27, 2003); or where the complainant explains his failure to appear at hearing by simply stating that he was ill without any independent confirmation of that fact (Mason v. ASI Technologies, ERD Case No. 199703647 (LIRC April 17, 1998).

The ALJ's failure to grant the complainant's meritorious postponement request, as well as his commitment but apparent failure to re-evaluate her postponement request once she submitted the medical information he solicited, provided good cause for her failure to appear at the scheduled hearing.

Two additional points deserve mention.

The complainant alleges that the ALJ is biased and should be disqualified from hearing her case. If the complainant decides to pursue this matter after remand, she may file a motion for recusal pursuant to Wis. Adm. Code § DWD 221.18 at that time.

The respondent's motion for a protective order, filed in response to the complainant's October 14 discovery request, is also a matter for resolution by the designated ALJ after the remand has been effected.

cc: Attorney Craig A. Kubiak

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(1)( Back ) The commission notes that it interferes with the process established by Wis. Adm. Code DWD 218.18(4) for an ALJ to issue an order of dismissal based upon a complainant's failure to appear at a hearing before the 10-day review process referenced in this provision has expired. Mason v. ASI Technologies, ERD Case No. 199703647 (LIRC April 17, 1998).


uploaded 2004/06/28