CONNIE SWEET, Complainant

M & H RESTAURANTS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an order on September 26, 2002, which dismissed the complaint based on the failure of the complainant to appear and proceed. The complainant filed a timely petition for review.

Based on a review of the record in this matter, the commission now issues the following:

That the complaint in this matter is dismissed with prejudice.

Dated and mailed November 29, 2002
sweetco . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

Procedural Facts

A hearing in this matter was scheduled for September 24, 2002. The complainant's attorney appeared on her behalf, but the complainant did not come to the hearing. The administrative law judge concluded that dismissal of the complaint was required by Wisconsin Administrative Code § DWD 218.18(4), which provides, as follows:

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.

On September 26, the administrative law judge issued a written order dismissing the complaint based upon the complainant's failure to "appear and proceed." In her order the administrative law judge noted that the complainant's attorney did appear, but was unable to proceed on the complainant's behalf without the complainant present. (1)

On October 10, 2002, the complainant submitted a letter to the administrative law judge explaining her reasons for failing to come to the hearing. The following day the administrative law judge notified the complainant by letter that she no longer had jurisdiction over the matter, since more than 10 days had elapsed since the hearing, and that an appeal would have to be filed with the commission. The administrative law judge's letter cited to Wis. Admin. Code § DWD 218.18(4). The complainant filed a timely petition for commission review.

Discussion

Section DWD 218.18(4) of the Wisconsin Administrative Code requires dismissal if a complainant fails to appear at a hearing in person or by a representative. In this case, the complainant appeared by her attorney. Thus, Wis. Admin. Code § DWD 218.18(4) was inapplicable. However, while the complainant's failure to come to the hearing did not require dismissal of her complaint, her failure to put in any evidence in support of her case was a situation warranting dismissal. The relevant question, then, is what effect the complainant's explanation for her failure to come to the hearing has in a case in which the complaint was dismissed not due to a failure to appear, but due to a failure of proof.

The commission considered this question in a previous case which presented a similar set of procedural facts, Cooper v. Janlin Plastics (LIRC, June 5, 1992). In Cooper, the commission noted that the general rule in a situation in which the complainant's attorney appears, but either the complainant herself or another important witness fails to show, is for the attorney to request a continuance to allow time to respond to the unexpected absence of the witness. The commission explained that the requirement that a party request a continuance is designed to prevent the party from being able to speculate on a favorable outcome in the first hearing and that, if a continuance is requested and denied, and if the case then fails for lack of proof, the party can move for a rehearing. While the complainant's attorney had failed to request a continuance in the Cooper case, the commission concluded that this failure did not preclude further consideration of the complainant's petition for review, particularly where the administrative law judge's handling of the situation created the impression that it would have been futile to request a continuance. The administrative law judge did not ask counsel for the complainant if he proposed to proceed, and no motion to dismiss had been made, yet the administrative law judge on his own motion ruled that the complaint would be dismissed. Given these circumstances, the commission held that the complainant's attorney's failure to request a continuance was clearly not an attempt to speculate on a favorable outcome at the hearing, and would not prevent it from reviewing the complainant's stated reasons for failing to appear.

Here, as in the Cooper case, the complainant's attorney failed to request a continuance as she should have done. However, while the administrative law judge's order states that the complainant's attorney was unable to proceed on the complainant's behalf without the complainant's presence, the administrative rule permitted the complainant's attorney to proceed without the complainant, and the administrative law judge did not ascertain whether she intended to do so. (2)   The record contains no indication that the respondent moved to dismiss, and it appears that the administrative law judge dismissed the complaint on her own motion. Given these circumstances, the commission considers it appropriate to review the facts asserted by the complainant in her petition in order to determine whether they are credible and, if so, whether they establish any entitlement to rehearing, in spite of her attorney's failure to request a continuance.

In her petition for commission review the complainant explains that she was having a hard time making it to the hearing. She states that, although she told her attorney the night before that she felt just fine about the hearing, by morning she felt sick to her stomach just thinking about having to see "Terry" again and hear him lie about her. The complainant further indicates that she has been seeing a doctor once a week for depression, and has filed for SSI and disability insurance. The complainant states that she hopes if she faces Terry this will help her to be able to start over and to move on with her life, and that she promises to be at the hearing early if she gets another chance.

Having reviewed the complainant's explanation for missing the hearing, the commission is disinclined to afford her the second chance she requests. Although the complainant indicates that she suffers from depression, she has not asserted that her depression prevented her from coming to the hearing, and nothing in her petition suggests that she was medically or psychologically unable to appear. The complainant's assertions that she had a hard time making it to the hearing, that she felt sick to her stomach, and that she did not want to face her former employer, are consistent with the type of anxiety or nervousness many people feel when faced with the prospect of confronting a former employer accused of discrimination. Such pre-hearing jitters, while understandable, do not excuse a complainant's failure to attend her own hearing or entitle her to a second chance. The commission also notes that the complainant has not explained why she felt unable to handle seeing her employer at the originally scheduled hearing, but believes she could manage it at a later date, and it sees no basis to conclude that a second hearing would be any more productive than the first one.

The commission, therefore, declines to grant any further hearing, and it affirms the dismissal of the complainant's complaint.

cc: 
Attorney Linda L. Hale
Attorney Amy O. Bruchs

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(1)( Back ) At the hearing the administrative law judge stated on the record, "While we were waiting for the complainant to appear, the complainant's attorney contacted her office and was informed by her secretary that the complainant had called her office and stated she would not be able to appear because her daughter is ill. Consequently, I'm going to dismiss her complaint based on her failure to appear. I don't believe she's demonstrated good cause for failing to appear for the hearing." The complainant's attorney was not asked whether she wanted to proceed without the complainant and did not request a continuance.

(2)( Back ) While, as a practical matter, the administrative law judge was probably correct in assuming that the complainant's testimony would be essential to her ability to prevail in a discrimination case, the complainant was not legally obligated to be present at the hearing and her attorney could have attempted to make the case based on other evidence available to her.

uploaded 2002/12/06