KENYOTA AMOS, Complainant
An administrative law judge (ALJ) for the Equal Rights Division (ERD) 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 May 25, 2007
amosken . rsd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
On January 23, 2006, the complainant filed the underlying charge of race/color discrimination.
On July 28, 2006, an ERD equal rights officer issued an initial determination of no probable cause. The complainant filed a timely appeal on August 3, 2006.
By notice to the parties dated January 9, 2007, ERD scheduled a probable cause hearing for April 6, 2007. This notice included a copy of the relevant administrative rules; and advised the parties that they were required to file a list of potential witnesses and copies of potential exhibits at least ten days prior to hearing or they would be subject to exclusion, and that postponement requests made later than January 19, 2007, would be granted only for unforeseeable emergency circumstances.
On February 21, 2007, the complainant notified ERD that his new mailing address was in Mississippi, and requested that another copy of the hearing notice and accompanying materials be sent to this new address. The file in this matter indicates that this was done.
On March 28, 2007, attorney Kloth of the Cross Law Office filed a notice of appearance with ERD on behalf of the complainant. In this notice, Kloth referred to the upcoming proceeding as a mediation on April 5, 2007, and inquired whether the complainant could appear by phone rather than in person. The file does not indicate whether the assigned ALJ or anyone else from ERD responded to the request for a phone appearance.
On April 2, 2007, Kloth transmitted a "Mediation Report" to ERD, accompanied by a note requesting that the assigned mediator contact him to discuss the location and time of the mediation as well as his earlier inquiry regarding a phone appearance by the complainant. Again, the file does not indicate that the assigned ALJ or anyone else from ERD responded to Kloth.
The next day, April 3, 2007, Kloth transmitted notice to ERD that he had withdrawn as counsel for the complainant.
ALJ Olstad convened the hearing, as noticed, on April 6, 2007, but the complainant did not appear. ALJ Olstad dismissed the complainant's charge on April 11, 2007, as a result.
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 he had good cause for his failure to appear at the noticed hearing, i.e., that his 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).
The complainant retained an attorney after the 10-day deadline for filing witness list/exhibits had already expired. This attorney apparently formed the mistaken belief that the proceeding was a mediation and inquired whether the complainant would be able to appear by phone rather than in person. According to the complainant, his attorney told him prior to hearing that he would not be permitted to attend by phone, but, by the time he received this information, it was too late for him to make the 900-mile trip to Wisconsin from Mississippi. The complainant's counsel withdrew six days after he had been retained and three days before hearing.
It should first be noted that the actions or inactions of the complainant's attorney, even if erroneous, are imputed to the complainant. See, Hamilton v. Northwestern Elevator Co., Inc., ERD Case No. CR200003827 (LIRC Dec. 10, 2002); Valdes v. Harley Davidson Motor Co., Inc., ERD Case No. CR200203820 (LIRC Oct. 27, 2006). Any misinformation the complainant received regarding the April 6 hearing was from his attorney. 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 granting further hearing. Crawford v. Wiza Industries LLC, ERD Case No. CR200503691 (LIRC Oct. 20, 2006).
It should also be noted that, even if the complainant had presented a postponement or telephone appearance request to ERD, either personally or through his attorney, which ERD failed to address, this circumstance would not have provided good cause for his 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 had reason to be aware that neither a postponement request nor a telephone appearance request had been granted in his case, and yet failed to appear at the noticed hearing. These were not the actions of a reasonably prudent person. See, Beasley v. OIC-GM, ERD Case No. 200304356 (LIRC Oct. 1, 2004).
The complainant has failed to offer an explanation which, if proved, would demonstrate that he had good cause for his failure to appear at the noticed hearing, and the commission has affirmed the ALJ's dismissal of his charge as a result.
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