CARMENETTA D MALONE, Complainant

FROEDTERT MEMORIAL LUTHERAN HOSPITAL, 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 July 30, 2003
malonca . rsd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This is a complaint of disability discrimination. A notice of hearing on the issue of probable cause was issued by the Equal Rights Division on March 5, 2003, stating that the hearing was scheduled to convene on May 14, 2003, at 9:00 a.m. The administrative law judge assigned to hear the case convened the hearing on the scheduled date and time, but the complainant failed to appear. The complainant explained this failure to appear in her petition for commission review as follows:

On May 14, 2003 I was scheduled for a hearing. To my knowledge the hearing was at 10:00 a.m. Upon arrival to that hearing I was notified that the hearing was not at the time in which I believed it to be, but at 9:00 a.m.

Section DWD 218.18(4) of the Wisconsin Administrative Code provides as follows:

(4) 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.

A non-appearing complainant, in a petition to the commission, must demonstrate that she had good cause for her failure to appear at the hearing, i.e., that her failure resulted from excusable neglect, and must explain this failure to appear with a degree of specificity adequate to allow a reasoned assessment by the decision maker of whether it is probable that "good cause" could be established. Mason v. ASI Technologies, ERD Case No. 199703647 (LIRC April 17, 1998). The complainant offers few specifics in her explanation. The most reasonable inference which may be drawn from the specifics she does provide is that she received the hearing notice but appeared at the hearing one hour after the notice indicated it was scheduled to commence because she failed to carefully read it. This is not sufficient to show good cause.

cc: Attorney Stephen L. Knowles

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uploaded 2004/06/16