TERRELL CHYPHES, Complainant
FRANCHISE FOOD SERVICE, Respondent
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 19, 2007
chyphte . rsd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On June 11, 2007, the Equal Rights Division mailed a notice of hearing to the parties which set forth 9:00 a.m. on September 13, 2007, as the time and date that a probable cause hearing would be held on Terrell Chyphes' complaint of race and color discrimination with respect to his terms and conditions of employment, termination of employment and refusal to hire or employ him.
At about 9:15 a.m. on September 13, Chyphes called the ALJ and asserted that he had just gotten home from work taking the bus and realized when looking at his papers that the hearing was at nine o'clock. The ALJ asked Chyphes how long it would take for him to get to the hearing and he said he could be at the hearing by ten o'clock. The ALJ told Chyphes that he better be there by 10:00 a.m. or his complaint would be dismissed.
Chyphes did not appear for the hearing at 10:00 a.m. At 10:03 a.m. the ALJ went on the record. Counsel for the respondent, along with two witnesses, was present for the hearing. After noting Chyphes' call earlier that morning and statement that he could be at the hearing by ten o'clock, the ALJ stated that Chyphes had not arrived, nor had she received any other phone calls from him, so she was dismissing his complaint. Apparently Chyphes arrived at the ERD's office on September 13 at about 10:10 a.m.
On September 14, 2007, the ALJ issued an order dismissing Chyphes' complaint based on his failure to appear at the time scheduled for the hearing.
In his petition for review, Chyphes apparently asserts that his situation was overwhelming, at times due to nervousness from not having legal counsel and being "harshly threatened" by the opposing attorneys, and that due to his transportation by bus, he miscalculated his arrival time. Chyphes asserts that if he is granted another hearing he can surely prove that the respondent discriminated against him.
The Equal Rights Division's rules pertaining to failure to appear at the hearing provide as follows:
(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.
Wis. Admin. Code § 218.18(4).
Chyphes has not shown good cause for his failure to appear at the time scheduled for his hearing. While Chyphes' nervousness due to lack of counsel is understandable, information in the case file provided by Chyphes himself indicates that one reason for his inability to obtain legal counsel was because he had waited too late to attempt to seek legal representation. A Certification to Hearing notice the ERD mailed to the parties on September 11, 2006, advised the parties that "If you expect to be represented at the hearing by an attorney, and have not yet retained one, you should do so immediately." Chyphes has not explained when or what it is that opposing counsel allegedly did that made him feel "harshly threatened", or why this caused his failure to appear at the time scheduled for the hearing. Finally, Chyphes' assertion that he miscalculated his arrival time by bus is unavailing given that the 10:00 a.m. time is the time he said he could be at the hearing after already failing to appear for the hearing at 9:00 a.m.
Accordingly, the commission has affirmed the administrative law judge's dismissal of Chyphes' complaint.
cc: Attorney Kristi Nelson Foy
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uploaded 2007/10/22