MARY FEASTER, Complainant

DILLINGHAM CONSTRUCTION, N.A., INC., Respondent

On March 16, 1990, an Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter ordering the dismissal of the Complainant's complaint based upon her failure to appear for the March 9, 1990 scheduled hearing. The Complainant subsequently filed a timely petition for Commission review of the matter. The Respondent filed a response to the Complainant's petition for review.

Based upon a review of the record, the Labor and Industry Review Commission hereby issues the following:

That the decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed June 29, 1990

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The case file shows that the Department mailed copies of the Notice of Hearing (and complaint) to the parties on February 5, 1990. The notice set forth March 9, 1990, as the hearing date. There is nothing in the file which indicates that Ms. Feaster's hearing notice had been returned to the Department as undeliverable.

The case file shows that subsequently on February 26, 1990, the Respondent filed an answer to Feaster's complaint and that the Department mailed a copy of the Respondent's answer to Feaster on February 27. The Department's cover letter stated:

"Enclosed is the ANSWER filed by the Respondent in the abovereferenced case scheduled for hearing before this Bureau." (emphasis added)

The case file further shows that on February 28, 1990, the Respondent filed with the Department, and sent a copy via bonded courier to Ms. Feaster, a list of witnesses and documents that it intended to use at the hearing. The cover letter to this material read as follows:

"Pursuant to the requirement of the Wisconsin Administrative Code, Dillingham Construction N.A., Inc. (DCNAI) hereby files with the Division a List of Witnesses and Copies of Documents which we expect to use in the upcoming hearing on the above subject case. The complainant has also been provided with an identical copy of this letter and its contents via bonded courier." (emphasis added)

Ms. Feaster apparently claims that a failure to receive the hearing notice was the reason for her failure to appear at the March 9 hearing. She asserts on appeal to the Commission that, to her knowledge, she had only received a "deposition" by mail with no hearing date. The Commission infers that Feaster's reference to having received a "deposition" actually refers to her receipt of the Respondent's answer to her complaint and its material sent as potential exhibits and witnesses to be presented at the hearing. In both instances there were sworn statements of Respondent's personnel included.

The Commission is not satisfied that Ms. Feaster had good cause for her failure to appear at the hearing. Even assuming that Feaster had not received actual notice of the hearing, her acknowledged receipt of copies of the Respondent's answer and Respondent's list of potential witnesses and exhibits provided constructive notice to her that a hearing on her complaint was scheduled to take place very soon. As noted above, a cover letter attached to Respondent's answer stated that her case was scheduled for hearing; the cover letter to Respondent's witness and exhibit list stated that the enclosed material was to be used in the upcoming hearing. Having at a minimum received constructive notice of the scheduled hearing, it was not unreasonable to expect her to have contacted the Department, whereupon she would have been specifically advised about the scheduled hearing on her complaint. At that time Ms. Feaster could have requested the Department to postpone the hearing if one was necessary. Instead, she chose to do nothing. The Commission believes that Feaster's failure to contact the Department in light of her constructive notice that a hearing on her complaint was about to take place was unreasonable, and suggests that she had no real desire to pursue her complaint.

Based upon the foregoing, the Commission has affirmed the Administrative Law Judge's dismissal of Ms. Feaster's complaint.

125 : CD4140

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