STEPHANIE SCHWARZ, Complainant

GATEWAY TECHNICAL COLLEGE, 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 April 23, 2010
schwast . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

   Ann L. Crump, Commissioner

On August 4, 2009, the Equal Rights Division mailed a Notice of Hearing on the Merits of Stephanie Schwarz's discrimination complaint to the parties which informed them that a hearing would be held on Schwarz's complaint at 9:00 a.m. on November 12, 2009, in Bristol, Wisconsin.

Schwarz failed to appear in person or by representative on the date and time of her scheduled hearing, and as a result the ALJ issued a decision dismissing her complaint.

A complainant whose case has been dismissed for failure to appear at a hearing must demonstrate, on appeal, that there was good cause for the failure to appear at the hearing.  Good cause has been defined to mean either that the failure to appear was the result of excusable neglect, i.e., the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances, or a reason, which, if established by competent evidence, would amount to circumstances beyond the individual's control, or which would otherwise have prevented or made it unreasonable for the complainant to appear. Amos v. McDonalds (LIRC, 05/25/07), citing Matousek v. Sears Roebuck & Co. (LIRC, 10/ 15/04) and Hopson v. Family Dollar Stores, Inc. (LIRC, 10/30/03); Kieck v. Mas Graphics (LIRC, 08/28/06), citing Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).

The failure to appear for the hearing, however, must be explained with a degree of specificity adequate to allow a reasoned assessment by the decision-maker of whether it is probable that good cause could be established. Martin v. County of Milwaukee (LIRC, 12/ 17/04).

In Schwarz's petition for commission review of the ALJ's decision she asserts that she "had communicated earlier in both voice mail messages as well as faxed communication my inability to be at the hearing."

Schwarz's petition does not indicate when she had communicated by voice mail or fax, the reason(s) for her inability to be at the hearing.

The ALJ stated on the record at the scheduled November 12, 2009 hearing that at the conclusion of a prior hearing between the same parties on October 14, 2009, Schwarz stated she had some sort of family emergency that would preclude her from appearing at the November 1 2 hearing and that he advised Schwarz that: 1) the hearing would remain on the calendar unless and until she provided something from her doctor indicating that she was needed on November 12 and therefore would be unable to attend the scheduled November 1 2 hearing; and 2) she should notify the respondent of her situation as well.

However, the ALJ stated at the hearing on November 12, 2009, that as of November 12 he had not received anything in writing from Schwarz.  Further, counsel for the respondent stated that the respondent had not received a phone call or anything in writing from Schwarz.

In addition, the ALJ stated on the record that he had left several messages for Schwarz asking her to provide him with a time that she could be reached, and that Schwarz had failed to do that as well.

Under the circumstances presented in this case Schwarz has failed to establish that there was good cause for her failure to appear for the scheduled November 12, 2009 hearing on her discrimination complaint.

cc: Attorney Jason A. Kunschke

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