MELVIN D REED, Complainant

CHOICE ONE COMMUNICATIONS, 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.

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

Dated and mailed February 27, 2003
reedme . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The complainant failed to appear for his scheduled January 10, 2003 hearing on his complaint of alleged race and age discrimination. Previously, on December 20, 2002, the complainant had filed a motion requesting a postponement of the January 10 hearing for approximately one month. As reason, the complainant asserted that he needed more time to prepare, (1)   that he was already involved in two other legal cases that were scheduled to be briefed in court, and that he was sometimes "incapacitated by depression" and had discontinued his medication for this ailment because he was indigent. He further asserted that he had a "recent divorce after a 15 year marriage" and that there had been "the death of complainant's new finance's mother this year." By letter dated December 30, 2002, the ALJ denied the complainant's motion to postpone the hearing, stating that he had not shown good cause for a postponement. The ALJ noted that the complainant's other legal actions did not constitute a legitimate basis for a postponement, that he had provided no medical evidence of his depression, that none of the non-legal events referenced in his motion seem to have occurred within the last few weeks and that his postponement request a little more than 20 days before the hearing was simply too late given the basis for the request. (2)   Following the ALJ's denial of the request for postponement, on January 8, 2003, the ALJ received a call from the complainant in which the ALJ was informed the complainant was having hernia surgery on January 10. The ALJ advised the complainant that he would need to submit medical evidence to establish that he had a condition which required that he have surgery on the date of the scheduled hearing. The ALJ did not receive such medical evidence prior to the hearing and therefore did not postpone the hearing.

On the date of the scheduled hearing, however, the ALJ did receive a fax from the complainant which included a "Return to Work/School Certificate" stating that the complainant had been under the care of a doctor since January 9, 2003 until January 10, 2003, due to "Surgery on 1-10-03." As a result of this information, the ALJ sent correspondence to the complainant dated January 13, 2003, requesting that the complainant provide a letter from his doctor with the following information: (1) name of the doctor that performed the surgery; (2) when the situation that resulted in surgery started or manifested itself; (3) whether surgery could have been scheduled to allow the complainant to attend the January 10, 2003 hearing; and (4) whether the complainant's condition would have seriously affected his ability to proceed with the hearing if the surgery was scheduled for another day. The ALJ's correspondence advised the complainant that without this information his complaint would be dismissed, but if the requested information were provided a new hearing date would be scheduled.

The complainant responded by letter dated January 22, 2003, in which he enclosed a letter from his surgeon. In his letter the complainant stated "Because I went through a (sic) indigency program, I had only recently met the surgeon who is unfamiliar with my medical history not knowing my ailment existed with me for over a year." The letter from the complainant's surgeon stated in part as follows:

"Mr. Reed was originally, seen at the office on 01-08-2003 with pain to his left inguinal area. Diagnosis of a hernia was made and surgery was scheduled for 01-10-2003 on an urgent basis because of pain to the area, especially when he walks."

By letter dated January 24, 2003, the respondent requested that the matter be dismissed because the letter from the complainant's doctor did not (1) state when the situation that resulted in surgery started or manifested itself; (2) state whether surgery could have been scheduled to allow the complainant to attend the hearing; and (3) address whether or not the complainant's condition was such that it would have seriously affected his ability to proceed with the hearing on January 10, 2003, if the surgery was scheduled for another day. Also, among other things, the respondent noted that "Obviously, if Mr. Reed's condition has existed for over a year, there was no emergency that required him to schedule surgery on the very day that he was scheduled for a hearing in this case."

Subsequently, by letter dated January 30, 2003, the complainant made the following assertion for the first time: "On Monday, January 6, 2003 I felt a 'pop' in this hernia area. Because I had no medical insurance since February of 2002, I was forced to endure my ailment until the pain became unbearable. When I went to the GAMP office [January 7, 2003], a state program for people who don't have insurance, I was told I would have to wait 2-3 weeks for approval. I was approved due to the graveness of my injury the same day." The complainant's assertions were not supported by any medical documentation.

The ALJ dismissed the complainant's complaint based on his failure to appear for his January 10, 2003 hearing. The ALJ concluded that the complainant failed to establish that emergency circumstances existed prior to the hearing that warranted postponement of the hearing; that the complainant scheduled long- needed surgery on the date of the hearing in an attempt to get a postponement of a hearing for which he was not prepared. The commission agrees. As noted in the decision of the ALJ:

"[The complainant] acknowledged that he had the problem for over a year. Only a week prior to his so-called emergency, his request for postponement had been denied. [A postponement request that had made no mention of a hernia] He failed to file a Witness and Exhibit list prior to his alleged problems on January 6, 2003. His claim that his pain became unbearable on January 6, 2003 is not believable since he drafted and submitted a discovery motion the day after this was supposed to have happened with no mention of his condition or of the need for a postponement. Despite clear instructions regarding the need for information from his doctor regarding the need for information regarding the scheduling of the surgery, the Complainant failed to supply that information."

Based upon all of the above, the commission has affirmed the ALJ's decision dismissing the complainant's complaint in this matter.

cc: Attorney Lawrence T. Lynch

Appealed to Circuit Court. Appeal dismissed August 18, 2003 on procedural grounds.  

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(1)( Back ) The Equal Rights Division had issued a written notice to the parties on October 24, 2002, scheduling the hearing for January 10, 2003.

(2)( Back ) The Equal Rights Division's rules, § DWD 218.18(2), provide in relevant part as follows: "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."

uploaded 2003/03/10