RICK JACKSON, Complainant
DUPLAINVILLE TRANSPORT, 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.
Procedural history - This case started with a complaint filed by Rick Jackson ("Jackson") in August 2008, alleging that respondent Duplainville Transport ("Duplainville") violated the Wisconsin Fair Employment Act by discriminating against him because of conviction record when it refused to hire him, and by publishing a statement implying or expressing that it would engage in discrimination. An initial determination was issued on October 20, 2008, finding no probable cause to believe that Duplainville violated the law as alleged. Jackson appealed.
The matter was subsequently noticed for a hearing to be held on April 29, 2011. However, Jackson did not appear at the April 29, 2011, hearing. The ALJ then dismissed the complaint on the grounds that Jackson had not appeared.
Jackson filed a petition for review of the ALJ's dismissal order by LIRC. LIRC issued a decision on July 29, 2011 which set aside the ALJ's order and remanded the case for further proceedings. LIRC found that the ALJ's decision was based at least in part on the ALJ's doubt about the truth of the reasons Jackson gave for his failure to appear at the hearing. LIRC concluded that it was necessary that Jackson be provided with an opportunity for a hearing on the factual issues about his failure to appear at the April 29, 2011 hearing. Therefore its remand provided that the ALJ was to hold a hearing on whether Jackson had good cause for his failure to appear at the April 29, 2011 hearing.
On remand, notice was issued on October 17, 2011 for a hearing to be held on December 14, 2011 at the State Office Building in Milwaukee.
On November 7, 2011, Jackson filed a letter asking for "a full blown hearing on the merits" in order to save the parties' time and resources. While calling this a motion, his letter effectively recognized that the other party would have to agree to this. Duplainville promptly responded with a letter saying it would not agree to a hearing on the merits being held.
On December 2, 2011, Duplainville filed a witness and exhibit list for the upcoming hearing.
On December 5, 2011, Jackson filed a letter headed, "Response To Respondents Dec. 2, 2011 Witness & Exhibit List." This letter started out by referring to "Complainant's & Respondent's original discovery sent previously for April 29, 2011 hearing." It then continued with what was, in effect, argument (both substantive and procedural) regarding the merits of the case.
On the morning of December 13, 2011, Jackson filed (by facsimile transmission) a letter which requested a continuance of the hearing then set to be held on the following day. The reason given was that his car had been damaged that morning (the letter asserted that the muffler had come loose when he hit a pothole) and that he did not have the money to both repair the car and go to Milwaukee and pay for his parking.
That afternoon Duplainville filed (also by facsimile transmission) a letter opposing Jackson's request for a continuance.
The ALJ granted Jackson's request for a continuance. By a Notice of Hearing Change issued on December 22, 2011, the matter was re-set for hearing at 9:00 A.M., on March 5, 2012, again at the State Office Building in Milwaukee.
On February 14, 2012, Jackson filed a letter requesting the ALJ to grant a continuance "based on Wis. Court of Appeals and Rock County Circuit Court Supremacy Clause/ Pre-emption Merits". He attached a copy of a January 17, 2012 Order of the Rock County Circuit Court, Branch 3, in Case No. 11-CV-1610, in which the plaintiff was Jackson and the defendants were LIRC and Dedicated Logistics, Inc. That Order stayed the issuance of any decision in that case until the District IV Court of Appeals issued its decision in Appeal No. 2012AP2311, in which the appellant was Jackson and the respondents were LIRC and Klemm Tank Lines. Jackson also attached a copy of a January 31, 2012 ruling by the District IV Court of Appeals in Appeal No. 2012AP2311, which denied Jackson's motion to expedite that appeal. As with his earlier letter, Jackson's letter to the ALJ was basically argument (both substantive and procedural) regarding the merits of various matters he was pursuing in various forums. It appears his theory regarding the request for a continuance was, that the ALJ should take the same step as that taken by the Rock County Circuit Court and stay any further action in the case until the decision of the Court of Appeals was issued.
On February 15, 2012, the ALJ denied Jackson's request for a continuance, pointing out that none of the other matters he was referring to had anything to do with the question to be heard at the upcoming hearing, which was whether Jackson had good cause for failing to appear at the hearing on April 29, 2011.
On February 21, 2012, Jackson filed another letter. It stated that it was in reference to:
Complainant's Motion for Continuance of March 5, 2012 Hearing Also Judge Schacht's obvious bias since Lirc remanded this case as well as Clasen Quality Coatings decision.
The letter then went into detail on some repairs Jackson needed done or was trying to have done on his car's master brake cylinder. It continued with further argument on the merits of a number of Jackson's other cases.
On February 24, 2012, the ALJ denied Jackson's most recent request for a continuance, pointing out that he had been given, and still had, time to make arrangements to get to the (March 5) hearing, and that he had already been given one postponement for car problems. The ALJ also declined to remove himself for alleged bias, pointing out that adverse rulings are not evidence of bias.
Jackson telephoned the Equal Rights Division on March 2, 2012, the Friday before the scheduled hearing, and left a voice mail message for the ALJ stating that he would not be able to appear at the hearing on Monday. In this voice mail message, Jackson gave no reason for not being able to make it to the hearing.
On the morning of hearing, the ALJ was present at the hearing location, and Duplainville was present by counsel and with potential witnesses and was ready to proceed. Jackson did not appear. The ALJ eventually went on the record at some point after 9:30 A.M. and summarized the procedural history of the case from the point of the October 17, 2011 notice for the hearing to be held on December 14, 2011. The ALJ noted that in the voice mail message that Jackson left on March 2, he did not say anything about car trouble, or weather, but only that he would not be able to be at the hearing.
The ALJ then issued, on March 9, 2012, an order captioned "Reissued Order Of Dismissal - Failure To Appear At Hearing." It was essentially a reissued version of the ALJ's original order dismissing the complaint on the grounds that Jackson had not appeared at the April 29, 2011 hearing, with a reference to the subsequent history of that case on appeal to LIRC, including LIRC's remand, and with a description of the further procedural history mentioned above.
Jackson then filed a petition for LIRC review on March 27, 2012. It stated:
The above petitioner Rick Jackson Petitions Lirc to Review the above decision that was unlawfully dismissed due to his car trouble.
The petitioner will file a brief whenever Lirc obtains the transcript or synopsis.
Duplainville requested a briefing schedule, and one was issued on March 30. Jackson filed his brief on April 30. The only thing in it having anything to do with his failure to appear at the hearing was this:
The ALJ dismissed this complainant's case for failure to appear.
The complaint did call and explain to the ALJ his car problems.
Apart from this, the brief was entirely devoted to arguing the merits of Jackson's conviction record discrimination allegations.
Duplainville's brief argued that the ALJ's dismissal order should be affirmed because Jackson failed to appear at the March 5, 2012 hearing.
Jackson's reply brief said nothing about his failure to appear at the hearing; it was entirely devoted to arguing the merits.
Discussion - The rules of the Equal Rights Division provide:
Wis. Admin. Code DWD § 218.18
. . .
(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.
The ALJ appears to have based his dismissal of Jackson's complaint, on Jackson's failure to appear at the original April 29, 2011 hearing and on his failure to show good cause for that non-appearance.
It is certainly correct, that Jackson has not shown good cause for failing to appear at April 29, 2011 hearing. Of course, the reason for this is that he failed to appear at the hearing on March 5, 2012 which was to be held to give him the opportunity to try to show such good cause.
The commission interprets Wis. Admin. Code DWD § 218.18(4) as being applicable to a complainant's failure to appear at a hearing which has been scheduled for the purpose of taking evidence on the issue of whether that complainant had good cause for failure to appear at a previous hearing. See, e.g., McGuire v. Wal-Mart, ERD Case No. CR200902261 (LIRC, June 28, 2012).
Thus it sees the threshold issue here as being whether Jackson had good cause for his failure to appear at the March 5, 2012 hearing. If he did not, then his complaint should be dismissed under Wis. Admin. Code DWD § 218.18(4), for that reason.
Turning to that issue, the commission concludes that Jackson has not articulated a specific claim of anything that would constitute good cause for failure to appear at the March 5, 2012, hearing. When Jackson left a voice mail message for the ALJ on the Friday before that hearing was to be held, the only thing he said was that he wouldn't be able to be at the hearing. He did not at that time assert or claim any weather or transportation issues. Even since that time, he has not articulated a specific claim of what caused him to be unable to appear at the March 5 hearing. While in his petition for review and his response to Duplainville's brief to LIRC, Jackson has suggested that he was unable to appear at the March 5 hearing because of car trouble, these suggestions are unpersuasive. Jackson's last communication with the ALJ concerning alleged car trouble had been on February 21, when he requested a postponement based in part on claims about problems with his car's master brake cylinder. The ALJ had denied that postponement request on February 24, pointing out correctly that he had already been given one postponement for car trouble, and that he still had time to make arrangements to get to the hearing.
Even if Jackson was unable to use his own car to get to the March 5 hearing because of the mechanical problems with it that he had asserted in making his February 21, 2012 postponement request, this would not be good cause for failing to appear at the hearing. The fact that in the previous December he had car problems and had been granted a postponement because of that, certainly would have put him on notice at that point, that his car was potentially unreliable and that he should explore alternative methods of getting himself to the hearing location. Even accepting arguendo his assertion that he then had other car problems, he still had over a week after that request was denied to make alternative arrangements. The fact that someone does not have an operable private auto simply cannot be treated as a free pass to fail to attend any hearing scheduled in their case.
For all of the foregoing reasons, the commission issues the following:
The decision of the administrative law judge (copy attached) is affirmed, and the complaint in this matter is hereby dismissed with prejudice.
Dated and mailed
July 24, 2012
jacksonrick . rrr : 110 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
cc:
Attorney Jason N. W. Plowman,
Littler Mendelson P. C.
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uploaded 2012/07/27