TERRY WOOD, Complainant

R & M FREIGHT INC, d/b/a JEFF'S FAST FREIGHT, 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, except that it makes the following modifications:

1. In the first sentence of the fourth paragraph of the Decision, delete the phrase "violated the WFEL".

2. In the third sentence of the fifth paragraph of the Decision, change "William T. Daniels" to "Jeffrey Fowler".

3. Throughout the Findings of Fact, change "Zanono" to "Zanoni".

4. In the first two sentences of Finding of Fact No. 6, replace the word "turns" with the word "exits". Delete the third sentence, and replace it with the following:

As a result of missing those exits he completed his route about 50 minutes later than he otherwise would have.

5. In Finding of Fact No. 15, where "Lawrence" appears, change it to "Zanoni".

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed September 11, 2015

woodter_rmd . doc : 107 : 5  743

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

At the outset of the hearing the ALJ recounted his communications with the complainant the day before about the postponement request and explained his reasons for denying the request. The hearing then proceeded.

In his petition for commission review, the complainant challenges the ALJ's denial of his postponement request. He argues that he should be given some relief, presumably another hearing, because his lawyer dropped his case three weeks before hearing and he did not have time to retain another lawyer.

In reviewing an ALJ's rulings on procedural issues, such as whether to grant a request for postponement of a hearing, the commission applies a deferential standard, in which it asks whether the ruling was a reasonable exercise of discretion or an abuse of discretion. See, Reed v. Heiser Ford, Inc., ERD Case No. 200504107 (LIRC Dec. 7, 2007). Under this standard, the question is whether the tribunal "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis. 2d 400, 415, 320 N.W.2d 175 (1982); Paytes v. Kost, 167 Wis. 2d 387, 393, 482 N.W.2d 130 (Ct. App. 1992) (cited by the commission in Kutschenreuter and Schoenleber v. Roberts Trucking, Inc., ERD Case Nos. 200501465 & 200501422 (LIRC Apr. 21, 2011).

The standard for deciding postponement requests is set out in Wisconsin Admin. Code § 218.18(2):

(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.

The party requesting postponement must show good cause. In this case, because the request was made only one day before the hearing, the above rule contemplates that good cause must involve a showing of some emergency circumstance arising after the notice of hearing was mailed.

The circumstance that arose here was the complainant's realization that the lawyer he was hoping would assist him told him he was not going to help him. This happened three weeks before the hearing. The ALJ articulated several reasons why that circumstance did not give the complainant good cause for postponement of the hearing. First, there was never any filing by the complainant or the lawyer with the ERD indicating that the lawyer had been retained to represent the complainant at hearing. An instruction sheet mailed to the parties along with the notice of hearing contains the following advice: "Parties are expected to advise the division as soon as they obtain an attorney." Here, there was only a note from the complainant in August 2014 that he was giving someone named Gordon Leach the right to get copies of papers from the ERD's file, and a note that Attorney Leach made copies from the file on August 15, 2014. Similarly, there was no filing with the ERD that any lawyer retained by the complainant withdrew from representing the complainant.

The complainant did not make a convincing case that he actually retained a lawyer to represent him, and that the lawyer then withdrew three weeks before the hearing. If he had, he would have been in a better position to argue that he had good cause for a postponement. The ALJ did not err in concluding that the complainant's predicament was at least partly of his own making.

Second, when the complainant realized that the attorney was not going to help him, he still had three weeks remaining before his hearing date. He did not show that he used this time diligently. He did not attempt to subpoena witnesses to the hearing; he did not serve a witness list or copies of proposed exhibits on the respondent; and he did not contact the ALJ with his postponement request until the day before the hearing. The lawyer's "dropping" of his case then, was not the only factor that contributed to his lack of preparation for hearing. The complainant's failure to take action more promptly during that three-week period contributed to the unprepared condition he was in at hearing.

Third, although the complainant did not raise this issue in his petition for commission review, the ALJ also rejected the other reason for the complainant's postponement request-that he had a doctor's appointment. The ALJ did not err in doing so. When a party relies on a medical reason for a postponement request, the party must show to a reasonable degree of medical certainty that he or she is unable to attend because of a medical condition. Jones-Browning v. Associates Leasing, ERD Case No. 880880 (LIRC Mar. 16, 1990). The complainant characterized his appointment as a "pre-op" meeting. The ALJ read into the record the following excerpt from the doctor's note: "...therefore [the complainant] feels he will not be available to meet with you." That does not indicate a medical opinion of inability to attend, as much as it does a personal preference of the complainant not to attend.

In his petition for commission review, the complainant provides additional details about his problems with Attorney Leach, which he did not present to the ALJ. These details don't affect the reasonableness of the ALJ's decision, since he did not have them at the time he made his decision. The commission will not consider these on its own, because issues concerning an attorney's professional competence and responsibility, or the effects of alleged unethical conduct or contractual obligations, are not within the commission's statutory authority. Nealy v. Miller Compressing Co., ERD Case No. 9451243 (LIRC Sep. 19, 1995).

The commission concludes that ALJ acted within his discretion in denying the complainant's request for a postponement of the hearing.

The complainant also addressed the issue of disability discrimination in his petition for commission review, but all of his comments alleged facts that were outside the evidentiary record. The commission's rules provide that review by the commission shall be based on the record of the case including the evidence previously submitted at hearing before the department. Wis. Admin. Code § LIRC 1.04. The commission cannot consider factual assertions made in the petition for review, or documents submitted with the petition for review, that were not also made or submitted at the hearing. Therefore, the commission will not address or consider factual assertions that are not supported by the record.

cc: Attorney Jeffrey Fowler

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