WALTER V LOVE, Complainant
J P CULLEN AND SONS, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter on May 6, 2009, dismissing the complainant's complaint based on his failure to appear and proceed at the scheduled hearing on his discrimination complaint. The complainant filed a timely petition for commission review.
Based upon a review of the matter, the Labor and Industry Review Commission issues the following:
The ALJ's Order of Dismissal is set aside and this matter is remanded to the Division for a hearing and determination on the issue of whether the complainant had good cause for his failure to appear at his scheduled hearing. If good cause is established, the Division shall schedule the matter for further proceedings.
Dated and mailed June 26, 2009
lovewa . rpr : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Walter Love failed to appear for the hearing on his complaint of alleged discrimination, which was scheduled for 9 a.m. on Monday, May 4, 2009.
On appeal from the ALJ's dismissal of his complaint, Love indicates that he was out of town during the week prior to the scheduled hearing date and unable to get back for the hearing due to flooding. Love asserts that on the way to Arkansas he had car trouble and that he spent the night in Memphis, Tennessee. Love states that he shared a hotel room in Memphis with an individual whom he was trying to convince to work with him on a project. It is not clear if this meeting was just happenstance or part of Love's trip plans. Love has submitted a copy of what purports to be the individual's receipt of the bill for the hotel room where he stayed on Friday night. In any event, Love apparently asserts that it started raining on Friday night, May 1, 2009, while he was in Memphis. Love asserts that it did not stop raining until Monday. Love asserts that not knowing that it would continue to rain, on Saturday morning he traveled to Phillips County in Arkansas to visit his mother and sister who were ill. Love asserts that flooding had particularly occurred in Lakeview, where he had gone, and that he was advised by the police that the roads were not safe to travel on.
Love further asserts that when he got back home the first thing he did was to call the Equal Rights Division, but got no one to answer so he left a message. Love does not indicate the time/date that he was able to leave Arkansas to return home, the time/date that he arrived back home, or the time/date that he called the ERD and left a message or the nature of the message that he had left. Love asserts that "the next day" he went to the Equal Rights Division. Love apparently asserts that he was advised by an employee of the ERD that the ALJ had dismissed his case, that the employee had gotten his message but forgot to pass it on to the ALJ and had just forwarded it to the ALJ, and that Love would have to wait until he got the ALJ's decision to submit an appeal.
A party whose complaint has been dismissed for failure to appear at the hearing may have the hearing reopened provided the party has shown good cause in writing for the failure to appear. Wis. Admin. Code § DWD 218.18(4). Good cause is a reason, which, if established by competent evidence, would amount to circumstances beyond the individual's control or which otherwise prevented or made it unreasonable for the complainant to appear. Kieck v. Mas Graphics (LIRC, 08/26/06), citing Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).
Love has presented a written factual account of circumstances which could have prevented or made it unreasonable to appear at the hearing, except it is missing details about the time/date that he was able to leave Arkansas to return home, the time/date that he did arrive back home and when he called the ERD. However, as a general rule, a party's factual assertions as to grounds for the party's failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests that he or she may be able to demonstrate good cause for failing to appear. Kieck, supra; Whitlow v. Air Trans Airways (LIRC, 12/13/04); Hopson v. Family Dollar Stores (LIRC, 10/30/03).
cc: Stephen P. Wisnefsky, C.P.A.
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uploaded 2009/06/29