JENNIFER A. WENNESHEIMER, Complainant

AON RISK SERVICES, INC., 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 record which was before the ALJ. Based on its review, the commission now issues the following:

Facts - This case arose out of a complaint filed on January 15, 2010, alleging disability discrimination and retaliation. On May 13, 2011, an Initial Determination was issued finding no probable cause to believe that discrimination occurred. The complainant filed an appeal and the case was certified to hearing.

On January 19, 2012, a Notice of Hearing was issued setting the matter for hearing on March 28, 2012 in Green Bay. A copy of this notice was mailed to the complainant using the mailing address of P. O. Box 5759, De Pere, Wisconsin, 54115, which was the address provided on the complaint and was (and continues to be) the last-known mailing address for the complainant. There is no dispute that the complainant received the original notice of hearing.

On February 15, 2012, counsel for the respondent contacted the Equal Rights Division by FAX and requested a postponement of the hearing. The request stated that it had just been learned that one of the respondent's primary witnesses would be in Los Angeles and unavailable from March 22-30, 2012. The request indicated that a copy of the letter was being mailed to the complainant at her P. O. Box 5759, De Pere address.

By letter dated February 21, 2012, the ALJ granted the respondent's request for a postponement. This letter rescheduled the hearing for April 20, 2012, at 9:30 A.M. By letter dated March 8, 2012, the ALJ confirmed the rescheduling of the hearing to April 20 at 9:30 A.M., and he provided the specific information about where the hearing would be held (Room 152-B of the State Office Building in Green Bay). These letters were mailed to the complainant at her last-known address and there is no dispute that she received them.

On April 11, 2012, the respondent filed with the ERD its witness and exhibit disclosure as required by Wis. Admin. Code § DWD 218.17. Its cover letter showed that a copy had been sent to the complainant at her last-known address. The complainant never filed or served a witness and exhibit disclosure.

On April 16, 2012, the complainant FAXed a letter to the ALJ, with the heading "Urgent - Request to reschedule April 20, 2012 Hearing," stating:

Due to certain circumstances the Complainant, Jennifer A. Wennesheimer, is requesting an immediate postponement of the upcoming scheduling hearing (currently scheduled for April 20 of 2012).

A number of scheduled witnesses are unable to attend the April 20 of 2012 hearing as the recent inclimate weather which has raged across their state(s) has caused circumstances requiring their emergent need and assistance.

As such, I respectfully request an immediate postponement of the April 20 of 2012 hearing.

I anticipate the courts assistance in this matter and expect the Respondent will equally oblige as they were recently afforded the same courtesy.

We await your confirmation of the above request and the receipt of the new hearing date.

Thank you in advance for your time and consideration.

The ALJ responded to the complainant's postponement request by trying to arrange for a telephone conference call with the complainant and the respondent's counsel to discuss it. According to explanations put on the record by the ALJ later, the ALJ had his assistant attempt to reach the complainant by telephone to inform her that the ALJ wanted to hold a telephone conference in the matter at 3:45 P.M. on April 18, 2012. However, these attempts only succeeded in reaching the complainant's answering machine.

The ALJ nonetheless telephoned the complainant at 3:45 P.M. on April 18, with counsel for respondent on the line, for the planned telephone conference. Again, though, he reached only her answering machine.

The ALJ left a message indicating that he had wanted to have a conference to discuss the complainant's postponement request. The ALJ's message included a very clear and direct statement that, because he had not been able to reach the complainant to discuss her postponement request, he was not granting the request, and was instead leaving the hearing on the calendar scheduled for April 20, and that if she did not appear at that hearing her complaint could be dismissed.

Nothing further was heard back from the complainant in response to any of the telephone messages that had been left for her.

As he had said he would in his message to the complainant on April 18, the ALJ then convened the hearing on April 20. The respondent appeared, by counsel and with several potential witnesses. The complainant did not appear.

Approximately half an hour after the time the hearing was scheduled to start, the ALJ went on the record and confirmed the respondent's appearance, and the complainant's non-appearance. He also reviewed the contacts that had occurred from the point of the complainant's postponement request forward, as well as the fact that the complainant had neither served nor filed a witness and exhibit disclosure.

The ALJ then waited until May 11, 2012. No contacts of any kind were received from the complainant during that period. He then issued an order dismissing the complaint. The complainant filed a timely petition for commission review.

Discussion - This case presents a situation which the commission has addressed on a number of occasions: shortly before hearing a party makes a request for a postponement which is not granted, and that party then fails to show up at the hearing. This kind of situation implicates both the rules governing postponements, and the rules governing failures to appear at hearing.

The rules of the ERD provide:

Wis. Admin. Code § DWD 218.18 Hearings.
. . .
(2) Postponements and continuances. All 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. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.
. . .
(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 complainant here requested a postponement 4 days before hearing, based on a representation that scheduled witnesses were unable to attend because of bad weather. It is undisputed, that the ALJ did not grant this postponement request. On the contrary, evidence in the record establishes that 2 days before hearing, the ALJ left a telephone message for the complainant telling her expressly that the postponement was not granted, and that if she did not appear at the hearing her complaint could be dismissed. Nevertheless, she did not appear.

The complainant's petition for review argues:

The record will show April 16, 2012 Complainant sent "Urgent - Request to reschedule April 20, 2012 Hearing", with adequate reason and stating she awaits the confirmation of the request and the receipt of the new hearing date - to which she has still not received a response - allowing or disallowing same. As a result, at a minimum, based on just these circumstances, the Complainant must be afforded good cause and excusable neglect.

The complainant is thus in effect arguing that, because she had requested a postponement, and was waiting to hear a response to her request, she had good cause to not go to the hearing. However, the commission has consistently held the contrary.

In Wallace v. Laidlaw Transit, ERD Case No. CR200400852 (LIRC, 02/24/05), the commission said:

A non-appearing complainant, in a petition to the commission, must offer an explanation which, if proved, would demonstrate that she had good cause for her failure to appear at the noticed hearing, i.e., that her failure resulted from excusable neglect, the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances. See, Matousek v. Sears Roebuck and Company, ERD Case No. CR200302571 (LIRC Oct. 15, 2004); Hopson v. Family Dollar Stores, Inc., ERD Case No. CR200203179 (LIRC Oct. 30, 2003).

Even if the complainant had presented a postponement request to the department which it failed to address, this circumstance would not have provided good cause for her failure to appear at the scheduled hearing. See, Conner v. Mobile Mini, Inc., ERD Case No. 200301457 (LIRC April 30, 2004)(even though complainant's postponement request not addressed by ERD, no good cause for failure to appear at noticed hearing); Jaskolski v. M&I Data Services, ERD Case No. 8851055 (LIRC May 23, 1990)(the fact that a party filed a request for postponement and had not received any response from ERD did not justify the party's failing to appear at the hearing). The complainant was aware that a postponement had not been granted in her case, and yet failed to appear at the noticed hearing. Those were not the actions of a reasonably prudent person. See, Beasley v. OIC-GM, ERD Case No. 200304356 (LIRC Oct. 1, 2004).

To the same effect, see, Amos v. MacDonald's, ERD Case No. CR200600319 (LIRC, May 25, 2007).

Consistent with these decisions, the commission concludes that the fact that the complainant had made a postponement request did not give her good cause to fail to appear at the hearing.

Indeed, in this case the facts argue even more strongly against a conclusion of good cause, than in Wallace and the other cases just noted. They involved situations in which a party had made a postponement request and that request had not been addressed or responded to by the ERD. Here, the request had been expressly denied by the ALJ's phone message of April 18.

The commission also finds it significant that there was no claim by the complainant, and no basis on which to find, that anything prevented the complainant herself from going to the hearing. Whatever the situation may have been with the complainant's supposed witnesses, she has not asserted that the weather, or anything else for that matter, prevented her from coming to the hearing.

The complainant's petition for review also argues:

The Respondent had also previously requested to reschedule the hearing date and Respondents request - which was the same as the Complainants - was granted, making it unclear and imprudent to deny Complainants request and then issue an Order & Decision of dismissal with prejudice against the Complainant, when other more favorable decisions exist and could have been made.

However, the fact that the respondent's request for a postponement was granted, does not require that complainant's request be granted. The respondent's postponement request was not "the same as the Complainants." The respondent's request was made six weeks prior to the hearing, it provided a clear and specific explanation of why a witness would be unavailable, and it credibly explained that the unavailability of that witness on the scheduled day of hearing had only just come to the respondent's attention. In contrast, the complainant's request was noticeably vague and ambiguous about the reason that witnesses would be unavailable. Her assertion that some witnesses were unable to attend the hearing because weather had caused circumstances "requiring their emergent need and assistance," was unclear to the point of being unintelligible. What is more, the complainant's assertion that "scheduled witnesses" would be unavailable, was inconsistent with the fact that the complainant had not filed (indeed, never did file) a pre-hearing witness and exhibit disclosure as required by Wis. Admin. Code
§ DWD 218.17 indicating that she anticipated calling any witnesses.

In the view of the commission, the complainant's postponement request was not credible on its face. Given this, and also given that the ALJ made repeated attempts to contact the complainant before hearing to get more information about the circumstances behind the request but did not hear back from her, the commission finds the ALJ's decision to leave the hearing on the calendar to have been reasonable.

The complainant makes a number of other arguments in her petition for review. The commission concludes that these arguments are without merit.

The complainant argues:

Further, the Decision & Order states the Respondent was prepared to proceed - but it appears they did not and as such, they did not prosecute their case properly, making the ALJ decision further discrimination against complainant.

It was not necessary for the respondent to do anything at the hearing, because under Wis. Admin. Code § DWD 218.18(4), if the complainant fails to appear, the ALJ "shall" dismiss the complaint. This is consistent with the apportionment of legal burdens in equal rights cases, in which the ultimate burden of proof rests at all times with the complainant. See, Currie v. DILHR, 210 Wis. 2d 381, 565 N.W.2d 253 (Ct. App. 1997).

The complainant also argues:

Also, the Complainant has not received any reasoning or authority supporting the ALJ's decision to disallow the request to reschedule. To date, the agency or ALJ has not sent Complainant a letter explaining the denial.

The complainant was notified, by a telephone message from the ALJ, that the request for the postponement was not granted and that the hearing would remain on the calendar. There is no express requirement that, when such a procedural scheduling decision is involved, the ALJ has any obligation to articulate reasoning or authority. However, in this case the reasoning and authority of the ALJ was clear. As noted above, the rules of the ERD provide the authority for an ALJ to grant postponements, but they limit that authority: postponements "may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys." Wis. Admin. Code § DWD 218.18(1). It was clear from the message the ALJ left for the complainant that he believed he needed more information from the complainant as to her reasons for requesting the postponement, before he felt he could justify granting it under the applicable standard. That was certainly a reasonable basis for the ALJ to decline to grant the postponement at that point.

The complainant's petition for review also argues that the Initial Determination was intentionally discriminatory, unsupported by the evidence, and biased and prejudiced. However, claims that an ERD investigation and its resultant Initial Determination were flawed or erroneous, are beside the point once an appeal is filed. The appeal provides the appellant with an opportunity for a full hearing and determination de novo on their claim. The Initial Determination has no bearing or effect on the ultimate outcome; that is determined by whether the appellant takes advantage of the opportunity to introduce evidence at the hearing, and by how that evidence is viewed by the presiding ALJ. See, Ollenburg v. Milw. Co. Sheriff's Dept., ERD Case No. 9151389 (LIRC, Sep. 28, 1994). In this case, the complainant threw away her opportunity to make her case at a hearing, by choosing not to go.

The complainant's petition for review also argues that she made many efforts to obtain information from the ERD and the EEOC and that these requests were either ignored or not fully responded to.

The only things in the file which fit the description of "efforts [by complainant] to obtain information from the ERD" are a couple of letters she sent the ERD after the Initial Determination was issued. The first, dated May 26, 2011 and received by the ERD on June 1, 2011, was a request for the complainant's complete investigative file. On June 9, 2011, the complainant sent the ERD a follow-up request for her complete investigative file, complaining that her first request had not been complied with. It does appear that the request for a copy of the file was eventually responded to. There is no reason to believe that the complainant was prejudiced to any extent in preparing her case by any delay in a copy of the file being sent to her. Considering that ultimately she simply failed to appear at the hearing, and that she has not asserted that delay in obtaining a copy of the file played any part in her decision not to appear at the hearing, whether there was any such delay does not appear to be relevant.

The complainant's petition for review also argues that the agencies have refused to address her concerns of an existing relationship between the respondent and the agency causing a conflict of interest. The complainant asserts that:

[i]t is believed the Respondent is the Broker/insurers for the State of Wisconsin. This relationship serves to be prejudicial against the Complainant who is allowed a hearing that is fair and impartial.

The commission finds no indication in the file that the complainant ever raised concerns about a relationship between the respondent and the State of Wisconsin. Nothing in the complaint or in the complainant's submission to the ERD investigator touches on this topic at all; there is also nothing in the complainant's appeal of the initial determination, or in her follow-up letter of about a week later, that asserts anything like this. There is also no evidence in the file about any such relationship, which would validate any such concerns even if they had been raised. And even if there was some type of commercial relationship between the respondent and the State of Wisconsin, this is hardly sufficient in and of itself to justify a conclusion that there is impermissible bias. After all, under the WFEA the Equal Rights Division and LIRC are expected to adjudicate cases in which the respondent is itself an agency of the State of Wisconsin. Yet, even such a connection is insufficient alone to support a conclusion of bias or an appearance of bias. See, Carbage v. Genesis Behavior Serv., ERD Case No. CR200203639 (LIRC, 04/15/05).

The complainant's petition for review also argues that the respondent has refused to cooperate with both discovery requests made and interrogatories sent. However, there is nothing in the file indicating that the complainant made any efforts at discovery after the case was certified to hearing on June 1, 2011. There is also nothing in the record showing that the complainant ever filed any kind of motion with the ALJ seeking an order to compel discovery. In addition, it is significant that the complainant did not cite any supposed non-response to discovery as a reason for her request for postponement, or for her non-appearance at hearing.

The complainant's petition for review also argues that the "the record will show neither the respondent nor the agency has provided the Complainant with the required witness list(s) and as such, the witnesses included by name in the ALJ's Decision and Order shall be barred from any hearing." However, as noted above, the file contains a copy of the respondent's witness and exhibit disclosure, filed with the ERD on April 11, 2012, and the cover letter expressly indicates that a copy was sent to the complainant by first-class mail. In any event, by failing to appear at the hearing the complainant effectively made it irrelevant whether the complainant was served with the respondent's witness and exhibit disclosure, because the only consequence of non-compliance would have been exclusion of respondent's evidence, and since the complaint was subject to dismissal as a result of the complainant's non-appearance that would not have been an issue.

Finally, the complainant requests a "default judgment" in her favor based on the Respondent's "failure to prosecute" at the April 20, 2012 hearing. As stated above, though, a respondent has no obligation to do anything to "prosecute" their case when a complainant has failed to appear at a hearing. The applicable rule, Wis. Admin. Code § DWD 218.18, requires dismissal of the complaint based simply on the complainant's failure to appear.

For all the foregoing reasons, the commission concludes that the ALJ properly declined to grant the complainant's postponement request, and it further concludes that the complainant failed to establish that she had good cause for her failure to appear at the hearing in this matter. On that basis, the commission issues the following:

The complaint in this matter is dismissed with prejudice.

Dated and mailed August 14, 2012
wennesheimer . rrr : 110 : 5 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The complainant's petition for review closes with requests that "the agency" provide her with "a copy of the required recording of the hearing date: April 20, 2012 ... a copy of the record made on the hearing date: April 20, 2012 ... the telephonic efforts to contact during the hearing date: April 20, 2012 ... a copy of the motion requesting dismissal on hearing date: April 20, 2012 [and] ... a full and complete copy of the entire file."

The commission sent the complainant a copy of the entire paper record in this matter on July 12, 2012.

The complainant may obtain copies of the audio recordings of both the attempted telephone conference on April 18, 2012, and the hearing on April 20, 2012, from the Equal Rights Division. That agency provides copies of recordings of proceedings before it in the form of an audio CD, upon submission of a CD request form and pre-payment of the charge for creating the CD. The commission is informed by the ERD that on July 13, 2012, it sent such a CD request form to the complainant with the indication that she needed to submit it, with prepayment for the CD(s), and that it has not heard back from her. Any further questions the complainant has about obtaining copies of the audio recordings of the proceedings before the Equal Rights Division in this matter, should be directed to that agency.

There was no "motion requesting dismissal" filed. As noted above, no such motion was necessary. When a complainant fails to appear at hearing, the ALJ is required by Wis. Admin. Code § DWD 218.18 to dismiss the complaint, whether or not a motion is made.

cc: Carmen N. Coudon, Attorney for Respondent

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