STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CHARLES B. MASON, Complainant

ASI  TECHNOLOGIES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199703647, EEOC Case No. 26G971980

On March 6, 1998 an Administrative Law Judge for the Equal Rights Division of the Department of Workforce Development issued an Order of Dismissal in this matter, on the grounds that the Complainant, Charles B. Mason, had failed to appear at the hearing on his complaint. The Complainant has filed a timely appeal.

A Notice of Hearing which scheduled this matter for hearing at 9:00 A.M. on March 6, 1998, was mailed to Complainant's last- known address, at 4334 N. 29th Street, in Milwaukee, on January 13, 1998. It is clear from the record that this was (and is) Complainant's current address. There is no indication in the file that this copy of the Notice of Hearing was returned by the Post Office. The commission therefore infers that the Complainant received the Notice of Hearing.

The Complainant failed to file the Witness and Exhibit List which is required to be filed no later than 10 days prior to a scheduled hearing. See, Wis. Admin. Code. Ch. ILHR 218.17.

There is no indication in the record that there was any contact from the Complainant prior to the hearing indicating that he would be unable to appear or requesting a postponement.

The Complainant did not appear at the hearing on March 6, 1998.

There is no indication in the record of any contact from the Complainant at or after the time of the hearing explaining his failure to appear, until March 26, 1998, when the Equal Rights Division received a letter from the Complainant (dated March 24, 1998) which stated in its entirety:

I was scheduled to attend an appeal regarding the case listed above. Unfortunately, I was ill and unable to attend. I am sending this letter as notification that I will be appealing this case.

The rules of the Equal Rights Division, Wis. Admin. Code. Ch. ILHR 218, provide:

ILHR 218.18 HEARINGS
. . .
(4) FAILURE TO APPEAR AT HEARING. If a 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.

This rule requires more than a mere assertion of good cause; it requires that the non-appearing party must "show" good cause. The commission believes that this requires the non-appearing party to explain their failure to appear with a degree of specificity adequate to allow a reasoned assessment by the decisionmaker of whether it is probable that "good cause" could be established.

In this case, there is only a bald assertion that the Complainant was "ill and unable to attend." There is no independent confirmation of this assertion, such as a note from a health-care provider. There is not even any indication of what the "illness" was.

In addition, the Complainant's failure to file the required Witness and Exhibit List before the day of hearing suggests that he may have planned not to attend, or may even have forgotten about, the hearing. His failure to contact the Equal Rights Division in any fashion for 20 days after the day of hearing passed and he was sent an Order of Dismissal, also suggests that he was either indifferent to or had forgotten about the case. These circumstances lead the commission to view his current assertion, that he failed to appear simply because he was "ill and unable to attend" the hearing, as not being credible.

For these reasons, the commission finds that under all of the circumstances here, the bald assertion belatedly made by the Complainant, that he was "ill and unable to attend" the hearing, does not rise to the level of a showing of "good cause" for his failure to attend the hearing. Therefore, the commission agrees with the Order of Dismissal of the ALJ, and it adopts that Order as its own.

DECISION

The Order of Dismissal issued by the administrative law judge (copy attached) is affirmed. The complaint is therefore dismissed.

Dated and mailed: April 17, 1998
masonch.rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: Once an Administrative Law Judge's decision has been issued, a written objection to that decision filed by the Complainant with the Equal Rights Division should generally be treated as a Petition for Review, irrespective of its precise form.

However, because an Administrative Law Judge's authority to set aside or alter his or her decision is extinguished once a Petition for Review has been filed, see, Wuest v. Motel 6 (LIRC, 11/05/91), Wood v. Purolator Courier Corp. (LIRC, 06/11/91), Foster v. Crest Bldg. Maintenance (LIRC, 01/30/84), the operation of ILHR 218.18 (4) in the manner in which it was evidently intended is not possible where the Administrative Law Judge issues an Order of Dismissal immediately upon a Complainant's failure to appear at a hearing.

For these reasons, it would be desirable if the ten days referred to in ILHR 218.18 (4) were allowed to pass before Orders of Dismissal based on non-appearance were issued.

However, in the circumstances presented in this case, none of the Complainant's rights were impaired by the timing of the decision. He still had the opportunity to show grounds for his failure to appear. The dismissal of his complaint is affirmed because he has failed to do so in any credible or specific way.

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