OLIVIA A. B. JASKOLSKI, Complainant

M & I  DATA SERVICES, Respondent

A hearing on the complaint in this matter was scheduled for March 8, 1990 at 9:00 a.m. in the State Office Building in Milwaukee, Wisconsin. The Complainant failed to appear. On March 22, 1990, the Administrative Law Judge issued an order dismissing the complaint on the basis of the Complainant's failure to appear and proceed at the hearing. On March 28, 1990, the Complainant filed a petition for review, in which she alleged that she should have been granted a postponement of the scheduled hearing, and that the Administrative Law Judge was not impartial.

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

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

Dated and mailed May 23, 1990

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The complaint in this matter alleged that the Complainant was sexually harassed by a supervisor at her workplace. After an initial determination of no probable cause was issued, the Complainant requested hearing on the issue of probable cause, and hearing was scheduled for December 12, 1989.

On December 6, 1989, the Equal Rights Division issued a notice postponing that hearing to March 8, 1990. No explanation was provided in the notice as to the reason for the postponement, but the Commission infers that it related to a number of contacts the Administrative Law Judge had with the Complainant and persons acting on her behalf, prior to that time. Judging from a subsequent letter from the Complainant to the Administrative Law Judge, the Judge and the Complainant spoke on the telephone on November 27, 1989, at which time the Complainant requested a postponement of the December 12, 1989 hearing and the Judge denied the request. The Complainant had requested the postponement because of inability to find an attorney. On November 30, 1989 the Equal Rights Division received a letter from the Complainant in which she summarized the contents of her telephone call with the Administrative Law Judge and in which she renewed her request for a postponement of the hearing. She recited in that letter that she had retained an attorney, but that the attorney had moved to Georgia, and that she was unable thereafter to obtain substitute counsel. She listed the names of ten attorneys she had contacted subsequent to the withdrawal of her attorney in an effort to obtain counsel. Also on November 30, 1989, the Equal Rights Division received a letter from Nancy Perry, Ph.D., a clinical and consulting psychologist, who recited that she had been treating the Complainant for one-and-a-half years and that she believed, to a high degree of psychological certainty, that for the Complainant to appear in the hearing before the Administrative Law Judge without benefit of counsel would be emotionally damaging to her. Perry recommended that the case be postponed until legal counsel was obtained. It also appears, judging from a December 6, 1989 letter to the Judge from the Complainant, that the Judge also had a telephone conversation on or around November 30, 1989 with Elly Robinson, an aide to State Senator Barbara Ulichny, in the course of which conversation the Judge apparently indicated to Robinson that he had received a letter from the Complainant's therapist and that on that basis he would grant a postponement of the hearing date with another date to be scheduled for sometime in March 1990.

Thus it appears that the originally scheduled hearing in this matter was postponed based on the Complainant's representations that she had been unable to retain counsel and on the representations of her psychologist that it would be emotionally damaging for her to proceed to hearing without counsel.

Judging from an assertion made in the Complainant's petition for review, the Administrative Law Judge had a telephone conversation with the Complainant's psychologist at some point in January 1990. Then on March 7, 1990, the Equal Rights Division received a letter from the Complainant in which she indicated that she had concluded that she could not represent herself at the hearing scheduled for March 8, 1990, was again requesting a postponement until she had obtained an attorney, and would not appear at the hearing if it was not postponed. In this letter, she referred to the opinion of her therapist as to the consequences of her appearing at the hearing to represent herself. She also indicated that, since her last letter, she had contacted four other attorneys in an effort to obtain representation, but again without success.

There is no indication in the file that the Administrative Law Judge made any kind of response to the postponement request received on March 7, 1990. He convened the hearing on March 8, 1990, at which the Respondent appeared, and after waiting an hour, he closed the hearing and subsequently issued his order of dismissal.

DISCUSSION

It is apparently the position of the Complainant that she had good cause for her failure to appear at the hearing in this matter because it would have been psychologically damaging for her to have appeared at the hearing without counsel and because she had been unable to obtain counsel to represent her. She refers to the fact that she had requested a postponement of the hearing on those grounds. She also asserts that the Administrative Law Judge was not impartial.

The Commission will assume for the sake of discussion only, that the opinion of the Complainant's psychologist was correct, and that it would have been psychologically damaging for the Complainant to have appeared at hearing without an attorney to represent her. The question remains, however, whether the Complainant's failure to retain counsel was excusable. While the Complainant was granted a postponement of the December 12, 1989 hearing based on inability to find counsel, the rescheduling of the hearing to March 8, 1990 effectively put the Complainant on notice that she was obliged to be prepared to go to hearing on that date, and thus to find the attorney that she and her psychologist represented she had to have. Despite this, it appears that the Complainant contacted only four attorneys between December 12, 1989 and March 8, 1990 in an effort to obtain representation. She has not indicated why, if these attorneys refused to take her case, she did not contact others. She has not indicated whether these attorneys in fact refused to take her case or whether she simply determined not to retain them. She has not indicated whether, if the attorneys did refuse to take the case, they did so based on factors within the Complainant's control, such as her unwillingness to enter into reasonable fee agreements which she was financially able to undertake. Thus, the Commission is not satisfied that the Complainant made a diligent effort to obtain legal counsel prior to the March 8, 1990 hearing. For this reason, her request for a postponement of that hearing filed on March 7, 1990 was not with such good cause that her failure to appear at the hearing can be overlooked. The mere fact that the employe had filed a request for a postponement and not received any response to it did not justify her in failing to appear at the hearing. The Commission therefore concludes that the dismissal of the complaint was proper.

The Commission has considered the Complainant's contentions that the Administrative Law Judge was not impartial due to the telephone conversation he had with the Complainant in the fall of 1989 and the telephone conversation he had with the Complainant's psychologist in January 1990. Complainant asserts that the content of these conversations, though not centered on the merits of the case itself, still indicated the Judge's personal attitude as to the adequate and/or proper legal representation with sex discrimination-related cases which indicates gender bias. In the absence of any indication in the file as to the nature of these conversations or as to the rationale of the Administrative Law Judge, the Commission is obviously handicapped in evaluating this contention by the Complainant. However, that is immaterial, since the Commission has decided herein, for its own reasons as stated above, that the Complainant demonstrated neither good cause for a postponement of the March 8, 1990 hearing nor good cause for her failure to appear at that hearing.

NOTE: As indicated above, the Administrative Law Judge presiding in this matter left no indication whatsoever in the file of his reasons for granting a postponement, requested on the basis of risk of psychological harm from appearing unrepresented and lack of counsel, in late 1989, or of his reasons for ignoring and thus effectively denying a postponement, requested on the same basis, in March 1990. Particularly in this latter respect, the Administrative Law Judge thereby ignored the teaching of the Commission, in Schilling v. Walworth County (LIRC, March 9, 1983), that where a complaint is dismissed for failure of the complainant to appear at the hearing, the Administrative Law Judge must discuss his reasons for denying any last-minute request for a postponement that preceded the hearing. Such an absence of explanation from an Administrative Law Judge with respect to the denial of the last-minute postponement request may in some cases require a remand for further decision or further proceedings. The Commission has not resorted to this here, however, because it was satisfied based on its review of the file that, whatever may have motivated the Administrative Law Judge, the circumstances were such that granting the Complainant's last-minute postponement request prior to the March 8, 1990 hearing was not required.

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