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



ERD Case No. CR200400852, EEOC Case No. 260A402001

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 information provided by the parties. Based on its review, the commission agrees with the decision of the ALJ, and it adopts that decision as its own.


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

Dated and mailed February 24, 2005
wallala . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


This underlying complaint alleges race discrimination.

A no probable cause initial determination (ID) was issued by the Equal Rights Division (ERD) on September 14, 2004, and the complainant filed a timely appeal of this ID. On October 18, 2004, ERD issued a notice to the parties that the case had been certified to hearing, and, on November 4, 2004, a notice that hearing had been scheduled for January 3, 2005.

The complainant did not appear at the scheduled hearing, and the ALJ issued a dismissal order as a result on January 6, 2005. (1)   The file in this matter does not indicate that the complainant contacted the department at any time after the notice of hearing was issued until she filed her petition for commission review on January 26, 2005.

The complainant explains in her petition that, during the relevant time period, she was busy caring for her great uncle, her son, and her parents' business;  she had started a new job and did not want to harm her attendance record by taking a day off to attend the hearing;  and she had filed a postponement request, which ERD apparently did not receive.

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.

A non-appearing complainant, in a petition to the commission, must offer an explanation which, if proved, would demonstrate that she had good cause for her failure to appear at the noticed hearing, i.e., that her failure resulted from excusable neglect, the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances. See, Matousek v. Sears Roebuck and Company, ERD Case No. CR200302571 (LIRC Oct. 15, 2004); Hopson v. Family Dollar Stores, Inc., ERD Case No. CR200203179 (LIRC Oct. 30, 2003).

Even if the complainant had presented a postponement request to the department which it failed to address, this circumstance would not have provided good cause for her failure to appear at the scheduled hearing. See, Conner v. Mobile Mini, Inc., ERD Case No. 200301457 (LIRC April 30, 2004)(even though complainant's postponement request not addressed by ERD, no good cause for failure to appear at noticed hearing); Jaskolski v. M&I Data Services, ERD Case No. 8851055 (LIRC May 23, 1990)(the fact that a party filed a request for postponement and had not received any response from ERD did not justify the party's failing to appear at the hearing). The complainant was aware that a postponement had not been granted in her case, and yet failed to appear at the noticed hearing. Those were not the actions of a reasonably prudent person. See, Beasley v. OIC-GM, ERD Case No. 200304356 (LIRC Oct. 1, 2004).

Moreover, a complainant is expected to manage her personal and work lives in a manner which will enable her to prepare for, and to attend, a scheduled ERD hearing. Although it appears from her petition that the complainant has many responsibilities in her personal life, these responsibilities were ongoing ones, and would not justify her failure to prosecute her complaint by not appearing for the scheduled hearing. In addition, the commission has consistently held that parties are expected to take time off from work to attend scheduled hearings. See, Kupferschmidt v. Milwaukee Board of School Directors, ERD Case No. 199551837 (LIRC May 30, 1996); Conner, supra.

cc: Attorney Michael E. Heston

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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. See, Mason v. ASI Technologies, ERD Case No. 199703647 (LIRC April 17, 1998).


uploaded 2005/02/28