RITA D HOPSON, Complainant

FAMILY DOLLAR STORES INC, Respondent

On July 9, 2003, an administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter dismissing the complainant's complaint because of her failure to appear at the July 2, 2003 hearing. The complainant filed a timely petition for commission review.

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

The administrative law judge's Order of Dismissal is set aside, and this matter is remanded to the Equal Rights Division for a hearing on the issue of whether the complainant had good cause for her failure to appear at the July 2, 2003 hearing. If good cause is established, the Division shall schedule the matter for further proceedings.

Dated and mailed October 30, 2003
hopsori . rpr : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

A hearing in the above-captioned matter was scheduled to be held on July 2, 2003, at 9:00 a.m. The complainant did not appear. Subsequent to the scheduled hearing time, but on the day of the hearing, the complainant telephoned the administrative law judge and explained that she had not appeared due to health problems. The administrative law judge instructed the complainant to submit her reasons in writing accompanied by a note from her doctor. The complainant had not done so by July 9, 2003, at which time the administrative law judge issued an Order of Dismissal.

In her petition for commission review the complainant states that she was very ill at the time of the hearing and encloses a doctor's excuse which indicates she was under a doctor's care on the date of the hearing. Neither the petition nor the doctor's note contain any indication as to the nature of the illness. Because, as a general rule, factual assertions as to the grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing, and because the limited information submitted by the complainant suggests that she may be able to demonstrate good cause for failing to appear, the commission has remanded this matter in order to give her an opportunity to make such a showing.

cc: Attorney Angela McKenzie

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uploaded 2004/06/16