BRIAN L CRAWFORD, Complainant

WIZA INDUSTRIES LLC, Respondent

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.

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

Dated and mailed October 20, 2006
crawfbr . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

On May 31, 2006, the Equal Rights Division sent a Notice of Hearing to the parties which informed them that a hearing would be held on September 7, 2006, regarding the complainant's discrimination complaint. Attorney Gordon R. Leech, who had been representing the complainant, notified the ERD earlier by letter dated May 9, 2006, that he was no longer representing the complainant.

At some point after May 31 the complainant apparently spoke to the ALJ by phone. A copy of a letter by the ALJ dated August 25, 2006, and addressed to the complainant (and which the respondent was copied) regarding that conversation appears in the case file. The letter reads as follows:

I received a call from you some time ago regarding your request for postponement. As I remember it, you said that you had a new job. As I remember it, I told you [you] needed to put your request in writing with all details including [your] attempts to get time off, when you got the job, etc. I then told you that you may want to discuss settlement with the Respondent, and I went over your potential back pay.

I talked to Ms. Vance, the attorney for the Respondent today. She says you are of the belief that the hearing has been postponed, and that you have exchanged offers of settlement. As I indicated earlier, your claim that I postponed the hearing is not consistent with my notes, where I put the file after your call or our discussion of possible remedies in your case. In addition, she says that you have chosen not to negotiate, but to just demand a settlement which would be more than you could receive from the Division if you prevailed after two hearings.

Please contact me immediately if your memory of our conversation is different or if you wish assistance in reaching a settlement.

There is nothing in the case file which indicates that the complainant ever contacted the ALJ following his August 25 letter.

The complainant failed to appear for the scheduled September 7, 2006 hearing. On September 8, 2006, the ALJ issued a decision dismissing the complainant's complaint. In dismissing the complaint based on the complainant's failure to appear and proceed, the ALJ stated, "The hearing was not canceled or postponed prior to the hearing, and, despite the Complainant talking about needing to work on the date of the hearing, the Complainant never put the details of his request for postponement in writing so that a ruling could be made on it."

The case file contains a letter dated September 7, 2006, sent by the respondent's counsel to the ALJ (and which the complainant was copied) regarding her conversations with the complainant and Attorney Richard Steinberg. This letter is stamped as being received by the ERD on September 11, 2006. With respect to the complainant, counsel's letter states that on August 24 during a second conversation with the complainant, the complainant "told me that according to Judge Schacht the hearing for September 7, 2006 at 9 a.m. was postponed." Counsel states that she had no further contact with the complainant.

With respect to Attorney Steinberg, counsel states that on September 6, 2006, at approximately 3 p.m. she received a voice mail from Attorney Steinberg. Counsel states that Attorney Steinberg stated he was not representing the complainant and would not be entering an appearance on his behalf but wanted to determine if the respondent would offer the complainant a sufficient amount to settle this matter. Counsel states that she communicated the complainant's demands to the company and that no settlement was reached. Counsel states that Attorney Steinberg told her he would not be appearing for the complainant, he was just doing the complainant a favor, and that the complainant would be appearing for the hearing tomorrow morning.

In the complainant's petition for review received by the ERD on September 29, 2006, the complainant asserts he is requesting an appeal "due to misrepresentation of my attorney and I have witnesses to be [subpoenaed]."

Section DWD 218.18(4) of the ERD's administrative rules provide as follows:

(4) FAILURE TO APPEAR AT HEARING. If the 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.

It is not clear whether the complainant is claiming that something "his attorney" stated has been misrepresented, or if what he is claiming is that he received poor or inadequate legal representation from "his attorney". In either case, his claim fails to provide reason to reopen the hearing in this matter. First of all, the complainant's only attorney of record notified the ERD by letter dated May 9, 2006, that he was no longer representing the complainant. There is no evidence or indication that the ERD was ever provided notice that the complainant had retained another attorney to represent him in this matter. Second, assuming for purposes of argument that the complainant had retained another attorney, if the complainant is asserting that something his attorney stated has been misrepresented, he has not shown how or why this constitutes good cause for his failure to appear for the September 7 scheduled hearing on his complaint. On the other hand, if the complainant is asserting that he received poor or inadequate legal representation from his attorney, poor or inadequate legal representation is not a basis for reopening the hearing on his complaint. Where the actions of an attorney adversely impact on a complainant who retained that attorney, the commission has consistently held that the actions by the attorney do not provide a basis for setting aside an ALJ's decision and granting a further hearing. Hamilton v. Northwestern Elevator Co., Inc. (LIRC, 12/10/02), citing Squires v. Montex, Inc. (LIRC, 03/15/02)(Party's disappointment with attorney's representation is not a basis for setting aside ALJ's decision); Pakek v. Waukesha Engine Div., Dresser Industries (LIRC, 08/31/95)(Party's assertion of inadequate legal representation by counsel is not an adequate basis for setting aside ALJ's decision); Neuberger v. Twin City Storm Sash Co. (LIRC, 01/22/92)(Failure to provide complainant with proper representation is not an adequate basis for setting aside the ALJ's decision).

Accordingly, the commission has affirmed the administrative law judge's dismissal of the complainant's complaint.

cc: Attorney Kaye Vance

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uploaded 2006/10/23