TRACEY L. CLEMONS, Complainant

SENIOR HELPERS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an "Order Of Dismissal - Failure To Appear At Hearing" in this matter. The complainant filed a timely petition for review.

The commission has reviewed the file herein and considered the petition and the position of complainant. Based on its review, and for the reasons stated in the Memorandum Opinion attached hereto, the commission now issues the following:

The Order of the administrative law judge (copy attached) is affirmed. The complaint and the amended complaint are hereby dismissed with prejudice.

Dated and mailed November 20, 2012
clemonstr . rsd : 110 : 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The complaint in this matter alleged a violation of the Health Care Worker Protection Act (Wis. Stat. § 146.997). An initial determination found probable cause. On May 25, 2012, a notice of hearing was issued setting the matter for hearing at 9:00 A.M. on August 16, 2012, at the West Bend City Hall in West Bend, Wisconsin.

On August 6, 2012, the complainant sent the ERD her witness and exhibit disclosure. It mentioned the West Bend hearing location. It said nothing about her facing any problems with transportation to the hearing.

On August 16, 2012, the day set for hearing, the complainant failed to appear at the hearing by the scheduled starting time. The respondent's executive director and 2 witnesses did appear at the hearing. The ALJ waited for the complainant to appear. At around 9:30 A.M., with the complainant having still not appeared, the ALJ called the ERD office and determined that the complainant had not contacted that office as of that time. The ALJ also checked her work voice mail messages and determined that the complainant had not left any messages. The ALJ remained in the hearing room until 10:05 A.M. The complainant never appeared at the hearing.

There is no indication in the file that the complainant made any effort to contact the ERD after her failure to appear at the hearing. On August 29, 2012, there still having been no contact by the complainant, the ALJ issued an "Order of Dismissal - Failure to Appear at Hearing" dismissing the complaint with prejudice.

On September 19, 2012, the complainant filed a petition for review of the dismissal order, which stated in its entirety:

To the Labor and Industry Review Commission and Equal Rights Division, I Tracey Clemons ask humbly for the commission to allow for this case to be re-opened and heard on the merits of my initial claim filed October 13, 2011. I offer my sincere regrets that I was unable to attend the hearing scheduled for August 16, 2012 at 9:00 AM. My absent was due to hardship and my inability to get transportation to the location of the hearing which, was held at 1115 S. Main, in the City of West Bend. I do not have a vehicle of my own nor did I have the financial means to obtain other transportation to the hearing. I have been very diligent in my timely responses to the Equal Rights Division and the Respondent responses up until now. I have worked on this case for nearly a year now and it would be greatly, greatly appreciated if the Review Commission would allow me the chance to have my case brought back to the Labor Commission for a hearing. 

Discussion -- Wisconsin Administrative Code, section DWD 218.18(4) provides:

(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.

A complainant who has failed to appear at her hearing must demonstrate that she had good cause for her failure to appear, i.e., that her failure resulted from excusable neglect, and she must explain this failure to appear 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, ERD Case No. 200304928 (LIRC, December 17, 2004).

Here the complainant's claimed reason for not appearing at the hearing was that she could not get from her home in Milwaukee to the hearing location in West Bend because she does not have a car and does not have the financial means to obtain other transportation. However, the lack of a car cannot, standing alone, always be considered good cause to fail to appear at a hearing. See, e.g., Jackson v. Duplainville Transport, ERD Case No. CR200802690 (LIRC, July 24, 2012). "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." Id. It is also relevant whether a party who did not have a car, had time to look into alternative transportation arrangements, and attempted to make such arrangements. Furthermore, it is relevant whether a party makes efforts to contact the ERD to advise it of problems that cause them to want a postponement of the hearing. See, e.g., Alexander v. Unified Solutions, ERD Case No. CR200201647 (LIRC, January 31, 2003). In the case of a party who has transportation problems, this would involve informing the ERD and exploring the possibility of a relocation or postponement of the hearing.

The complainant here had almost three months to look into making transportation arrangements to get to the hearing. While she made a general claim that she was unable to get transportation, she has not provided any specific information about her efforts. She has thus not explained her failure to appear with a degree of specificity adequate to allow a reasoned assessment of whether she had good cause. Martin, supra. It is also clear that the complainant never said anything to the ERD about needing a postponement or a change in the hearing location, even when it turned out she could not actually get to the hearing. In these circumstances, the commission finds that the complainant's explanation for failing to appear at the hearing fails to establish good cause. It therefore affirms the dismissal of the complaint.

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2013/01/02