VERONIKA McCARTHY, Complainant
DUNGARVIN WISCONSIN LLC, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, 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
February 28, 2014
mccarve_rsd . doc : 164 : 5 769
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
In her petition for commission review and supporting briefs the complainant argues that the administrative law judge erred in deciding to hold a hearing on the question of whether the complainant required an interpreter at the same time as the substantive hearing, and in dismissing the complaint when the complainant failed to appear at the scheduled hearing. She maintains that this matter is controlled by a published court of appeals decision, (1) which the complainant characterizes as requiring the administrative law judge to act on a language accommodation request by either obtaining an interpreter or setting a separate date in order to determine whether the party requires an interpreter. The complainant suggests that the administrative law judge's failure to adhere to this procedure warrants a new hearing.
The complainant's argument fails. The resolution of this matter is not governed by the court of appeals decision cited by the complainant, but by the Equal Rights Division's rules, which provide:
"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. . ."
Wis. Admin. Code § DWD 218.18(4)(emphasis added).
The only exception to dismissal for failing to appear is if the complainant can demonstrate good cause for the failure. Wis. Admin. Code § DWD 218.18(4).
In this case, the complainant was specifically notified by the administrative law judge that her complaint would be dismissed if she did not appear at the hearing and was made aware of the administrative rule compelling that result. The complainant nonetheless made a conscious decision not to appear at her hearing. Although the complainant now argues that the administrative law judge's pre-hearing rulings (2) provided her with good cause for failing to appear, the commission does not agree.
The commission has repeatedly held that a complainant who disagrees with rulings rendered by an administrative law judge is required to proceed with the hearing in order to preserve her objections to such rulings on the record for review on appeal, and that if the complainant instead refuses to proceed with the hearing due to her objections to the rulings and her complaint is dismissed as a result, she will be deemed to have waived her objections to those rulings. See, Mullins v. Wauwatosa School District, ERD Case No. CR200800326 (LIRC May 17, 2013); Miller v. Old Dominion Freight Line, ERD Case No. CR200802203 (LIRC Jan. 27, 2011); Jackson v. Transwood, Inc., ERD Case No. CR200303522 (LIRC April 27, 2007); Casetta v. Zales Jewelers, ERD Case No. 200204189 (LIRC June 14, 2005); Clemons et al. v. Opportunities Industrialization Center of Greater Milwaukee, ERD Case No. 200102575 (LIRC Feb. 14, 2003); Young v. Valley Packaging Industries, ERD Case No. 9001485 (LIRC April 27, 1992).
The commission explained the rationale for this rule in Mullins:
"The commission continues to take this view, which it believes is important to the integrity of the system in place for litigation, appeal and review of ER cases. The reason it is important, is that it secures the non-appealability of interlocutory decisions of ALJs. Administrative rules, see, Wis. Adm. Code § DWD 218.21, and numerous LIRC decisions, see, e.g., Woodford v. Norwood Health Center, ERD Case No. 199704340 (LIRC May 11, 2001), provide that only final decisions and orders of ALJs, which dispose of the entire complaint and leave no further proceedings pending before the division, may be appealed to LIRC. Yet if parties could simply bail out of hearings when they received rulings they disagreed with, appeal the resultant no-show dismissal, and get review of the underlying ruling and an order of remand for rehearing or further hearing if they prevailed, they would in effect be able to do exactly what the rules and decisions say they should not: appeal non-final, interlocutory decisions."
It is clear from the complainant's brief -- in which she states that she cannot protect her rights without the ability to file an interlocutory appeal -- that she is attempting to achieve exactly the result the commission cautioned against in Mullins, and which the Equal Rights Division's rules specifically forbid.
Because the complainant failed to appear at her hearing without good cause, the dismissal of her complaint is affirmed.
cc:
Mr. Frank Guara
Attorney Thomas Godar
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