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


OIC-GM, Respondent

ERD Case No. 200304356, EEOC Case No. 26GA400191

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 October 13, 2004
beaslro . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


In his petition for commission review the complainant argues that his request for a postponement should have been granted and that his complaint should not have been dismissed. The complainant contends that the inability to travel over 1000 miles should not be a reason for dismissing his case. The complainant also states that he has not had the funds to secure an attorney or subpoena witnesses, and requests another 120 days in which to raise the funds to pursue his issues. The commission has considered these arguments, but finds them unpersuasive.

The complainant requested a postponement of the hearing on the ground that he was to appear at a separate hearing before the Department of Veterans Affairs in Jackson, Mississippi on July 29, 2004, five days prior to his hearing before the Equal Rights Division (ERD), and that the travel time and financial hardship associated with appearing at the ERD hearing would present difficulties for him. (1) The administrative rules provide that all requests for postponements shall be filed with the administrative law judge within ten days after the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. Wis. Admin. Code § DWD 218.18(2). The complainant did not receive notice of his Veterans Affairs hearing until July 16, 2004, two months after the notice of hearing in this matter was issued and, therefore, could not have been expected to request a postponement on that ground within ten days. However, the complainant did not attempt to secure a postponement immediately upon receiving the hearing notice, but waited an additional month before doing so, at which point the ERD hearing was less than two and a half weeks away. He has offered no explanation for this delay, but the fact that his motion to postpone was sent under the same cover as a belated request to conduct discovery suggests that the reason for the motion related less to the timing of the VA hearing than to the fact that the complainant was not yet prepared to go forward with his case. This is further borne out by the assertion in his petition that the complainant cannot afford to subpoena witnesses and seeks a 120-day delay in which to raise funds. In any event, the respondent filed an objection to the motion for postponement on the grounds that it was untimely and not due to an emergency circumstance, and the motion was not granted by the administrative law judge. (2) The commission sees no basis to conclude that the denial of the motion was in error.

Although the complainant had been given no reason to believe his motion was granted or that the hearing would be rescheduled, he nonetheless opted not to appear at the hearing. The complainant had received a copy of the division's rules prior to the hearing, which notified him that failure to appear would result in the dismissal of his complaint. While it may have been difficult for the complainant to travel to Wisconsin in order to appear at the hearing, there is no reason to believe that he could not have done so in the four days between the VA hearing and the hearing before the ERD. The complainant resides in Mississippi and would have to travel to Wisconsin for the hearing no matter when it was scheduled.

Under all the circumstances, the commission does not find that the administrative law judge erred in failing to grant the complainant's motion for postponement --  although, as indicated in the footnote to this decision, it believes he should have done so formally rather than by default -- and it finds that the complainant's failure to appear at his hearing was without good cause. The dismissal of the complaint is, therefore, affirmed.

cc: Attorney Rocky L. Coe

Appealed to Circuit Court. Affirmed March 10, 2005.

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(1)( Back ) The complainant's Motion For Postponement Of Hearing did not cite difficulties with securing an attorney or paying to subpoena witnesses, nor would such difficulties have warranted postponing the hearing. The information sheet which was provided to the complainant along with the hearing notice specifically indicated that postponements are not normally granted because a party has been unable to secure an attorney.

(2)( Back ) While failure to rule on the motion prior to the hearing was tantamount to a denial of the motion, it would have been better practice for the administrative law judge to issue a formal ruling on the motion, setting forth his rationale for granting or denying it. Indeed, depending upon the circumstances of the case, a failure to do so may warrant a remand for further proceedings. Jaskolski v. M&I Data Services (LIRC, May 23, 1990); Schilling v. Walworth County (LIRC, March 9, 1983).


uploaded 2004/10/18