JAMES MOTTL, Complainant

THE SALES FORCE COMPANIES INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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 information which was before the ALJ. Based on the applicable law and records in this case, the commission issues the following:

The decision of the ALJ is set aside. This matter is remanded to the division for a hearing on the merits before a different ALJ.

Dated and mailed June 26, 1996
mottlja . rrr : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

Procedural Background

The hearing in this matter was originally scheduled for January 12, 1996 and was rescheduled twice, first for March 6 and then for April 9, both times evidently in order to accommodate the administrative law judge's schedule. The hearing notice notifying the parties of the April 9 hearing date was mailed on January 22, 1996.

On March 12, 1996, the administrative law judge sent the complainant a letter in which he was advised that the administrative law judge needed to know whether he still intended to pursue his case. The complainant responded in a letter dated March 22, which was postmarked on March 26 and stamped as having been received by the division on March 28. The complainant's letter stated, in relevant part:

"I would like to continue to pursue this matter. However, I wish to inform you that I am unable to attend the hearing on April 9, 1996. I underwent surgery for colon cancer on March 8, 1996 and will now begin chemotherapy the week of April 8th..."

On April 3 the ALJ sent the following written response to the complainant:

"I received your letter dated March 22, 1996 on March 28, 1996.

"However, I do not understand your letter. You say that you are unable to attend the hearing and that you wish to pursue your complaint, but you do not ask for a postponement.

"Your hearing is still scheduled for April 9, 1996. If you do not appear at: the hearing at that time, your case will be dismissed. If you wish to have your hearing postponed, I need a request for a postponement indicating when you found out you needed surgery and why you waited until I sent you a twenty day letter just prior to the hearing to tell me of your medical condition. In addition, I need a letter from your doctor indicating why your medical condition prevents your appearing at the hearing and when you would be able to appear."

The complainant evidently did not respond to this letter. He did not appear at the hearing, and his complaint was dismissed as a result.  
 

Discussion

The complaint in this matter was dismissed because the complainant failed to appear at the April 9 hearing due to the fact that he was undergoing chemotherapy at that time. For the reasons set forth herein, the commission believes that the complainant requested a postponement of the hearing date and that his request should have been granted.

The complainant, who is proceeding pro se, specifically advised the administrative law judge in his letter of March 22 that he would like to pursue this matter but that he was unable to attend the hearing on April 9, 1996 because he would be undergoing chemotherapy during that week. Although the administrative law judge indicated that he could not understand the complainant's March 22 letter, the letter was clear and unambiguous, and the commission fails to understand how it could reasonably have been construed as anything other than a request for a postponement of the hearing date.

The administrative code provides that 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, and that postponements and continuances may be granted only for good. cause shown and not solely for the convenience of the parties. Chapter ILHR 218.18(1), Wis. Admin. Code. Although the code is silent with respect to what, if any, documentation must accompany a postponement request, the commission recognizes that an administrative law judge may need to make a reasonable request for additional information or documentation in support of such a request, if the circumstances warrant it. However, the commission sees no need for such additional information in this case. The complainant's request for a postponement was, quite clearly, not made for reasons of personal convenience, but was because of a serious medical condition. The complainant does not have a history of requesting postponements, and the commission sees no reason to question the credibility of the complainant's assertion that he could not attend the hearing because he would be undergoing chemotherapy. While the complainant did not request the postponement within 10 days of the issuance of the hearing notice, there is no reason o believe that he had notice of the scheduled chemotherapy at that time, given that he did not have the cancer operation until March 8. Under all of the circumstances, the commission believes that a postponement should have been granted and that the ALJ's failure to reschedule the hearing to accommodate the complainant's medical treatment was unreasonable. Accordingly, the dismissal of the complaint has been set aside and the matter remanded for a new hearing.

cc: Joan M. Eagle

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