TIMOTHY A KIECK, Complainant

MAS GRAPHICS, Respondent

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued an order in the above-captioned matter on August 2, 2006, dismissing the complainant's complaint based on his failure to appear at the scheduled hearing on his complaint. 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 Division for a hearing and determination on the issue of whether the complainant had good cause for his failure to appear at the July 31, 2006 scheduled hearing. If good cause is established, the Division shall schedule the matter for further proceedings.

Dated and mailed August 28, 2006
kieckti . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The complainant failed to appear for a hearing scheduled for 9 a.m. on July 31, 2006, in Waukesha, Wisconsin on his complaint of alleged discrimination, which resulted in the dismissal of his complaint. The ERD had issued a Notice of Hearing for this matter on May 5, 2006.

A complainant whose complaint has been dismissed for failure to appear at the hearing may have the hearing reopened provided the complainant has shown good cause in writing for the failure to appear. Wis. Admin. Code § DWD 218.18(4). Good cause is a reason, which, if established by competent evidence, would amount to circumstances beyond the individual's control or which otherwise prevented or made it unreasonable for the complainant to appear. Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).

The complainant has asserted in writing that he was unable to attend the hearing because his mother's usual ride to the hospital for her daily radiation treatment for cancer was unable to make it, forcing him to have to take his mother to the hospital. The complainant further states that he is apologetic for not appearing at the designated time, but that the health and well-being of his family was of more importance at the time.

A note written by the ALJ in the case file indicates that before orally dismissing the complainant's complaint for failure to appear, at approximately 9:27 a.m. on July 31, 2006, she called the secretary of the ERD's Hearing Section and was told that the complainant had called her (the secretary) at about 8 a.m. and asked for the location and time of the hearing. The ALJ's written notes further contain a statement indicating that despite living in Waukesha, the complainant had failed to appear for the hearing approximately 90 minutes after being told the location and time of the hearing.

The commission concludes that a hearing is necessary to take testimony regarding the alleged circumstances which caused the complainant's failure to appear at the hearing. Even assuming for purposes of argument that the hearsay within hearsay problem that results from the ALJ's written notes about what she had been told by the Hearing Section's secretary regarding an 8 a.m. call from the complainant could be ignored, it is not known what time the complainant was allegedly forced to take his mother for her daily radiation treatment for cancer. As a general rule, factual assertions as to grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests he or she may be able to demonstrate good cause for failing to appear. Hopson v. Family Dollar Stores (LIRC, 10/30/03).

cc: Attorney Christine M. Genthner

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