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

PRISCILLA ANNETTE WHITT, Complainant

ALTERRA WYNWOOD OF MADISON WEST, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200400065, EEOC Case No. 26GA400937

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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed July 15, 2005
whittpr . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

If a complainant fails to appear at the hearing on her/his complaint, dismissal of the complaint is appropriate unless the complainant can show "good cause" for her/his failure to appear. Wis. Admin. Code § DWD 218.18(4).

The complainant asserts that she did not appear for her hearing (scheduled for May 27, 2005) "due to not having a lawyer that would take her case."

The complainant has not shown good cause for failing to appear for her hearing on May 27, 2005. The Equal Rights Division had advised the complainant on July 20, 2004, when it notified her that her case was certified for a hearing, that if she expected to be represented by an attorney and had not yet retained one, that she should do so immediately. The ERD did not issue a notice of hearing scheduling a hearing on the complainant's complaint until February 21, 2005. There is no indication as to what effort the complainant had undertaken to obtain an attorney. Furthermore, while the complainant may have preferred to have an attorney represent her at the hearing, representation by an attorney is not a matter of right under the Division's rules. The rules provide that "Parties may appear at the hearing in person and by counsel or other representative." Wis. Admin. Code § DWD 218.18(3). (Emphasis added.) Moreover, in instances where a party does not appear by counsel or other representative, it is the role of the administrative law judge to see; that the party's case is properly developed. Kropiwka v. DILHR, 87 Wis. 2d 709, 721, 275 N.W.2d 881 (1979); Ramada Inn v. LIRC (Eau Claire Co. Cir. Ct., 06/03/03).

cc:
Heather Sekula, Human Resources Director
Attorney Timothy J. Cesar

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