State of Wisconsin

Labor and Industry Review Commission

Sari Ghanem	Fair Employment Decision[1]
Complainant
University of Wisconsin-Madison Office of Administrative Legal Services
Respondent	Dated and Mailed:
ERD Case No. CR201004256	January 30, 2018
EEOC Case No. 26G201100384C	ghanesa_rsd: 164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/
	David B. Falstad, Commissioner

Procedural History

This case, which began with a complaint filed on November 16, 2010, has had a lengthy and complicated procedural history involving multiple determinations and several different administrative law judges.  Relevant to this appeal, the most recent administrative law judge to be involved with the matter issued a decision and order on January 3, 2016, dismissing some of the complainant’s allegations for failure to state a claim for relief under the Wisconsin Fair Employment Act.  Thereafter the complainant sent the administrative law judge an e-mail strenuously objecting to the decision and requesting that the administrative law judge remove herself from the case.  On January 12, 2017, the administrative law judge notified the parties by e-mail that she was declining to do so.  Although the complainant followed up with another e-mail indicating that he strongly objected to the administrative law judge’s decision, the administrative law judge remained on the case, and the matter proceeded through the pre-hearing discovery process. 

On September 13, 2017, a hearing notice was issued informing the parties that a hearing would be held on October 25, 2017, beginning at 9:00 a.m.  On September 28, 2017, the complainant sent the administrative law judge an email stating that he did not accept her as a judge on his case because he considered her to be biased and, in a second e-mail dated September 30, 2017, the complainant indicated that he had reasons not to appear at the hearing.  The hearing was convened as scheduled on October 25, 2017, but the complainant failed to appear.  On November 10, 2017, the administrative law judge issued an order dismissing the complaint based upon the complainant’s failure to appear at the scheduled hearing.  The complainant has filed a timely petition for commission review of that order.

Memorandum Opinion

In his petition for commission review the complainant argues that the administrative law judge was biased against him and that he objects to all decisions made by the administrative law judge.  The complainant states that he is requesting a new hearing and that he will appear and proceed with another administrative law judge assigned to the case.  In support of his argument the complainant attaches copies of the e-mails referenced above, showing that prior to the scheduled hearing date the complainant objected to a decision and order issued by the administrative law judge and requested that the administrative law judge remove herself from his case.

The rules of the Equal Rights Division clearly provide that “if the complainant fails to appear at the hearing. . . the administrative law judge shall dismiss the complaint.”  Wis. Adm. Code § DWD 218.18(4).  (emphasis added).  The only exception to the outcome of dismissal is if the complainant can demonstrate “good cause” for the failure to appear.  Mullins v. Wauwatosa School District, ERD Case No. CR200800326 (LIRC May 17, 2013). 

The commission has held that a party’s dissatisfaction with a prior ruling by the administrative law judge does not provide it with good cause for failing to appear at a hearing.  See, Mullins, cited above.  Further, a party that fails to persuade an administrative law judge to remove herself from a case must proceed to hearing with that administrative law judge and then raise the administrative law judge’s failure to remove herself as grounds for appeal in the event of an unfavorable decision.  Clemons v. Opportunities Industrialization Center of Greater Milwaukee, ERD Case No. 200102575 (LIRC Feb. 14, 2003).

Here, the complainant was aware that the administrative law judge had denied his request that she remove herself from his case and knew that the scheduled hearing was set to proceed.  Had the complainant come to the hearing and presented his case before the administrative law judge and then been displeased with the decision, he would have been entitled to a full and fair review of the entire proceeding by the commission, acting as an original and ultimate fact finder.  Clemons.  However, by choosing not to appear, the complainant not only waived his opportunity to object to any rulings made by the administrative law judge, he waived his opportunity to present his case.  The complainant does not have the option of skipping the hearing and then demanding a do-over with a new administrative law judge.  Because the complainant failed to appear at the hearing without good cause, his complaint must be dismissed.

cc:	Attorney Claire Dalle Molle

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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.