The Wisconsin Equal Rights (ER) Decision Digest -- Sections 762.3-765
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762.3
Matters found probative or relevantWhere at the hearing the Complainant was not asked to explain any discrepancies between his testimony and what he wrote on his complaint form, and was not given an opportunity to provide an explanation for any apparent inconsistencies between the two, the Commission would not rely on the complaint form to impeach the Complainant's credibility. Hopson v. Actuant Corp. (LIRC, 5/8/14).
When an investigation results in a determination of no probable cause and that is appealed to a hearing on the issue of probable cause, and when that hearing results in an ALJ's decision that there is probable cause and that the matter should proceed to a hearing on the merits, the proceedings on the merits which follow are entirely de novo. The record of the probable cause hearing is not part of the record on which the merits are to be decided, and the decision of the ALJ who presided at the probable cause hearing is of no relevance and of no weight in the merits proceedings. Neither the probable cause hearing record nor the decision resulting from it should be cited as having any significance, or accorded any significance, in the process of trying and deciding the merits of the case. Walker v. City of Eau Claire (LIRC, 03/28/13).
In discrimination cases the important question is the motivation of the person making the challenged decision - specifically, whether that person was motivated by an impermissible factor such as race, sex or age. Evidence about something a decision-maker was told by another person can be important in understanding what the decision-marker's motive was and it is appropriate for that evidence to be considered for that purpose. Luckett v. Regis Corp. (LIRC, 12/28/12).
Events which occurred outside of the statute of limitations period may be considered at hearing, although the remoteness in time of the events may limit their usefulness. Thobaben v. Waupaca Sheriff's Department (LIRC, 12/23/11).
It was within an Administrative Law Judge’s discretion to foreclose the Complainant from further attempts to impeach a witness’s hearing testimony after the ALJ concluded that the Complainant’s prior attempts to impeach the witness’s testimony did not in fact constitute impeachment. Whether what a witness says on the stand is inconsistent with a prior statement lies within the discretion of the trier of fact. Clark v. Plastocon (LIRC, 04/11/03).
The fact that certain allegations in the complaint were untimely, and thus could not in themselves be found to constitute discrete violations of the Wisconsin Fair Employment Act, does not mean that the events cannot be considered as evidence bearing on the question of whether acts which occurred within the 300-day period were discriminatory. The statute of limitations is not a rule of evidence. Clark v. Friskies Petcare (LIRC, 08/16/01).
The only significant reason for excluding evidence on relevancy grounds in administrative hearings is to avoid unnecessary lengthening of the hearing. An overly stringent approach to questions of relevance can be directly counter-productive to the goal of expediting the hearing. Further, LIRC or a court on review may find certain evidence relevant even though the ALJ may not. For this reason, the proper procedure is to allow parties to submit offers of proof as to evidence which the ALJ concludes is inadmissible. Fauteck v. Sinai Samaritan Medical Center (LIRC, 11/09/00).
The risk that irrelevant evidence will have an improper effect on the decision-maker is not particularly significant in an administrative hearing such as those held on complaints under the Wisconsin Fair Employment Act. Administrative Law Judges, who are attorneys experienced in resolution of the evidentiary and other legal issues presented in cases of this nature, are presumably able to disregard evidence which is irrelevant or otherwise improper when the time comes for them to make decisions on the merits of the case. Fauteck v. Sinai Samaritan Medical Center (LIRC, 11/09/00).
Details of a prior conviction may be considered as evidence impeaching credibility where the probative value of the evidence is not outweighed by its danger of unfair prejudice. Sec. 906.09, Stats. In this case, the probative value of the evidence that the Complainant had been convicted of a criminal offense involving dishonesty was highly relevant to the issue of the Complainant’s truthfulness. Urbanek v. Arrowhead Regional Distrib. (LIRC, 09/19/97).
Anecdotal evidence provided by former employes as to their own situations and their allegations that they were discharged because of their age, offered to prove a pattern of age discrimination, is generally not helpful. Evidence of such a pattern can more convincingly be shown by statistics that show unexplained disparities in treatment of classes of employes apparently distinguished by age. Erickson v. DEC Int'l. (LIRC, 01/18/90).
Consideration of an applicant's recent gaps in teaching experience is not evidence of age or sex discrimination, unless it is shown that such a consideration actually has a disparate impact on women or people over the age of 40. Chandler v. UW- LaCrosse (Wis. Personnel Comm., 08/24/89).
The reasonableness of the employer's reasons for its decisions may be probative of whether they are pretext. The more idiosyncratic or questionable the employer's reason, the easier it would be to expose it as a pretext, if indeed it is one. Leick v. Menasha Corp. (LIRC, 08/17/89).
Evidence of other cases in which insubordinate behavior similar to the Complainant's was tolerated was found unpersuasive, where the other incidents occurred before the tenure of the general manager who discharged the Complainant, and were unknown to him. McKiernan v. Madison Metro Bus Co. (LIRC, 02/12/87).
Sec. 904.04, Stats., does not preclude the admission, in a proceeding concerning allegations of sexual harassment, of evidence that the accused harasser engaged in sexual harassment towards others on other occasions. Schwantes v. Orbit Resort (LIRC, 05/22/86).
Evidence of how a Complainant's replacement performed after he replaced the Complainant was not relevant. In determining whether there was a prohibited motivation in removing the Complainant from the position, the Commission looks only to the motivations leading up to that decision, not to what happened afterwards, since what happened after has no bearing on whether the decision was based on a discriminatory intent. Lyckberg v. LIRC (Dane Co. Cir. Ct., 03/25/86).
Because promotion decisions were made at the divisional level, it was not error for LIRC to consider the pattern of supervisor promotions outside the plant where the employe worked. If there were varying "local factors" that led to covert discrimination, these factors should have been established. Bidlack v. LIRC (Sola-Basis Indus.) (Walworth Co. Cir. Ct., 03/25/81).
Proof of a general atmosphere of discrimination is not direct proof of discrimination against an individual, but will be considered with other evidence to determine whether race discrimination occurred. Stonewall v. DILHR (Wis. Personnel Comm., 05/30/80).
Adverse employment recommendations, while admissible into evidence and probative of the employer's state of mind in making its hiring decisions, are hearsay with respect to the applicant's work performance and do not of themselves constitute a legitimate, nondiscriminatory reason for refusing to hire a black applicant. Jackson v. Wingra Redi-Mix (LIRC, 06/07/78).
A denial by DILHR of the unemployment compensation claim of an employe with rheumatoid arthritis because she was unavailable for work was not probative of her inability to perform her job duties at the time of her discharge. J. C. Penny v. DILHR (Mitchell) (Dane Co. Cir. Ct., 03/22/76).
762.4 Official Notice
Although the record in the hearing was devoid of any evidence as to the definition of the crime of burglary, the Administrative Law Judge may take official notice of the state statute which defines the crime of burglary when determining if the crime of burglary is substantially related to a particular job. Santos v. Whitehead Specialties, Inc. (LIRC, 02/26/92).
LIRC took administrative notice that a Complainant was aware of the significance of a witness and exhibit list where the Complainant had filed many complaints with the Equal Rights Division in the past. Young v. Leach (LIRC, 12/18/90).
There was no testimony as to how large a menu would have to be in order for a person with 20/200 vision to read the menu. The Personnel Commission could not take judicial notice of such a fact because such a determination was outside the realm of generally recognized fact, and there was no foundation in the record as to the established technical or scientific facts upon which such a determination would be based. Betlach-Odegaard v. UW-Madison (Wis. Personnel Comm., 12/07/90).
Where the Administrative Law Judge concluded that the Respondent did not know of the Complainant's race at the time he failed to consider his application for employment, she also appropriately rejected the argument of the Complainant that official notice could be taken of the fact that the Complainant spoke with a recognizable "black dialect" and that therefore it could be inferred, based on his telephone conversation with the person who made the hiring decision, that the person must have known he was black. This was not a proper subject for official notice under sec. 227.45(3), Stats. Ealy v. Roundy's (LIRC, 03/12/87).
The circuit court may take judicial notice of the generally known procedure in which a Complainant goes to the Equal Rights Division, tells her story to an investigator, and then signs a complaint prepared by the investigator. Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984).
762.5 Judicial Admissions
For a statement to be a judicial admission, it must be clear, deliberate and unequivocal, and it must be a statement of fact rather than opinion. Two letters written by representatives of the Respondent to the Equal Rights Division in this case were appropriately treated as judicial admissions. The letters stated, among other things, that the Complainant (who alleged in his complaint that the Respondent failed to accommodate his religious practices) was selected for layoff in part because of his inability or unwillingness to work on Sunday. Although the Respondent subsequently claimed that the letters did not accurately reflect the Respondent's reason for discharging the Complainant, this testimony did not preclude the determination that the letters were judicial admissions. Tolibia Holdings, Inc. v. DILHR (Ct. App., Dist. II, unpublished decision, 02/15/95).
Judicial estoppel is an equitable determination and should be used only when the positions taken are clearly inconsistent. The doctrine of judicial estoppel has certain identifiable boundaries. First, the later position asserted by a party must be clearly inconsistent with the earlier position asserted by that party. Second, the facts at issue should be the same in both cases. Finally, the party to be estopped must have convinced the first court to adopt its position -- a litigant is not forever bound to a losing argument. In this case, the doctrine of judicial estoppel should not be applied. The Complainant had stated in his application for SSI benefits that he was disabled from performing any work. He also testified at a hearing that he doubted whether he was physically able to do certain work. Later, in a complaint filed with the Equal Rights Division, the Complainant testified that he was capable of performing his job. These statements are not necessarily inconsistent, because they do not address the question of whether the Complainant would have been able to perform his job had there been an accommodation of his disability. Harrison v. LIRC, 187 Wis. 2d 490, 523 N.W.2d 138 (Ct. App. 1994).
Judicial estoppel arises from sworn statements made in the course of judicial proceedings, generally in a former litigation, and are based on the public policy upholding the sanctity of an oath and not on prejudice to the adverse party by reason thereof, as in the case of equitable estoppel. There are two limitations on the doctrine of judicial estoppel. One is that the estoppel may be applied only where a clearly inconsistent position is taken. The second limitation is the requirement that the party to be estopped has convinced the court to accept its position in the earlier litigation. A party is not bound to a position it unsuccessfully maintained. Gilbertson v. Sajec Co. (LIRC, 02/19/93).
In order for a statement to constitute a judicial admission, it must be clear, deliberate and unequivocal, and it must be a statement of fact rather than opinion. Whether a statement or purported concession is to be treated as a judicial admission rests in the sound discretion of the court. James v. Associated Schools, Inc. (LIRC, 11/27/91).
762.6 Rebuttal Evidence
Generally, evidence offered in a Complainant's rebuttal case is permitted only if it is responsive to new facts put in evidence by the Respondent in its case, but this rule is flexible, and an exception is made when admission of the proposed evidence is necessary to achieve justice. The Commission examines an ALJ's ruling excluding proposed rebuttal evidence on the basis of whether it was a reasonable exercise of discretion, but an erroneous exclusion of evidence would only require reversal if there was a reasonable probability that it contributed to the outcome of the proceeding. Here, the exclusion of two rebuttal witnesses was not an abuse of discretion. The witnesses should have been presented in the Complainant's case-in-chief because the Respondent's articulated non-discriminatory reason, which the evidence was intended to rebut, was put in evidence prior to the conclusion of the Complainant's case-in-chief. In addition, the proposed evidence was integral to the Complainant's proof of causation, an element of his claim under the direct method of proof. Also, the Complainant did not show that the proposed evidence would have been crucial to the outcome of the case if it had been admitted. Oertel v. K & A Manufacturing Co. (LIRC, 06/16/14).
In the strictest sense, rebuttal evidence is that evidence offered by the Complainant after the Respondent has rested its case to contradict specific evidence unexpectedly presented by the Respondent. But in a broad sense, rebuttal evidence is any evidence offered by either side in order to rebut evidence which could not reasonably be anticipated and which surprised the party offering the rebuttal evidence. The surprise claimed should be considered to be tempered by the extent to which a party knew or should have known what testimony would be offered. Schwantes v. Orbit Resort (LIRC, 05/22/86).
763 Other procedures at hearing
The Administrative Law Judge did not err in deciding to hold a hearing on the question of whether the Complainant required an interpreter at the same time as the substantive hearing. McCarthy v. Dungarvin Wisconsin LLC (LIRC, 2/28/14).
After resting her case at the end of the first day of hearing, the complainant asked to supplement her case on the second day with additional exhibits and testimony of two additional witnesses. The ALJ properly ruled that the complainant had missed her opportunity to present this evidence and testimony in any way other than by rebuttal to the respondent's case. The ALJ properly indicated that she would decide at the conclusion of the respondent's case whether the proposed testimony and documentary evidence would be allowable as rebuttal. Delgado v. Saint Gobain Performance Plastics Corp. (LIRC, 11/29/13).
It was not error for an Administrative Law Judge to require the Complainant to provide a synopsis of the expected testimony of each witness he intended to subpoena in order to assist the Administrative Law Judge in determining whether the proposed witnesses' testimony would be relevant, and whether subpoenas should be provided to the Complainant. The Complainant's original request was for 35 subpoenas. The information provided by the Complainant consisted of a two or three-word description of what each witness would testify to and was inadequate to assist the Administrative Law Judge in determining whether to issue the requested subpoenas. The Administrative Law Judge therefore reasonably declined to issue the subpoenas. (At the hearing, the Administrative Law Judge advised the Complainant that he could request a continuance if there was a witness whose testimony was crucial to the presentation of his case, but the Complainant did not do so). Denis v. Wal-Mart Stores (LIRC, 05/31/11).
It was not an abuse of discretion for the Administrative Law Judge to allow a witness to testify by telephone. Counsel for the Respondent had apprised the Administrative Law Judge that the witness had not worked for the Respondent for more than a year, and that she lived in another state and was beyond the subpoena power of the state of Wisconsin. Johnson v. Kelly Services (LIRC, 04/21/09), aff?d. sub nom Johnson v. LIRC (Milwaukee Co. Cir. Ct., 04/06/10).
An
Administrative Law Judge properly denied the Complainant's request that various
individuals be subpoenaed to testify at the hearing.
The Complainant did not dispute the Respondent's assertion that the
individuals did not have personal knowledge regarding the actions underlying the
complaints, nor were they directly involved in investigating complaints that had
been made against the Complainant, or imposing the reprimands that resulted from
those complaints.
Kaye v. City of
A subpoena issued by a party who is not an attorney is invalid. Sec. 227.45(6m), Stats., provides that a party’s attorney of record may issue a subpoena to compel the attendance of a witness. The Equal Rights Division’s administrative rules provide that either the Department or a party’s attorney of record may issue a subpoena to compel the attendance of a witness. The Complainant in this case argued that he was acting as his own attorney. However, this argument was unpersuasive. The Complainant was acting as his own representative, but that did not make him a member of the bar and, thus, an “attorney” within the meaning of the statute or the administrative rules. Betters v. Kimberly Area Schools (LIRC, 11/28/07).
Administrative Law Judges have the authority to decline to enforce a subpoena if there is a reasonable excuse or reasonable cause for non-compliance with the subpoena. A witness must be considered to have a reasonable excuse and reasonable cause for not complying with a subpoena which is unreasonable and oppressive. When a subpoena is served on the evening before the hearing and only actually received the morning of the hearing, it is reasonable to consider it to have been unreasonable and oppressive and to consider the late service to be a reasonable excuse and reasonable cause for non-compliance with the subpoena. Greco v. Snap-On Tools (LIRC, 05/27/04).
While witnesses may be excluded from the hearing room so that they cannot hear the testimony of other witnesses, this does not extend to a party who is a natural person, or to an officer or employee of a party which is not a natural person who has been designated as its representative. Harris v. M&I Bank (LIRC, 09/11/03).
Sec. ILHR 218.15(1), Wis. Admin. Code, restricts the power for issuing subpoenas to the Department or to a party's attorney of record. A pro se litigant is not an attorney of record. Individual litigants appearing pro se desiring to compel the attendance of witnesses must avail themselves of the assistance of the Department. Oriedo v. LIRC (Dane Co. Cir.Ct., 05/20/99). [Ed. Note: Wis. Admin. Code ILHR 218.15 has been renamed DWD 218.15].
It is questionable whether pre-payment of witness fees and travel expenses is required when subpoenas for attendance at Equal Rights Division hearings are served. Oriedo v. Madison Area Tech. College (LIRC, 07/24/98).
Only a member of the Bar, or the Department itself, may issue a subpoena requiring attendance at a hearing before the Equal Rights Division. Subpoenas issued by a non-attorney were properly quashed. Oriedo v. Madison Area Tech. College (LIRC, 07/24/98).
The purpose of a sequestration order is to assure a fair trial and, more specifically, to prevent the shaping of testimony by one witness to match that given by other witnesses. While the Administrative Law Judge could have disqualified all of the sequestered witnesses that the Respondent called, based upon its violation of the sequestration order, it was not error to deny the Complainant's request to disqualify the witnesses if no prejudice resulted from the violation. Sobkowiak v. Trane Corp. (LIRC, 09/06/91).
There is no absolute right to a sequestration order. Jackson v. City of Milwaukee Public Library (LIRC, 12/14/90).
A court reporter was adequately appointed by the Department as required by sec. 111.39(4)(b), Stats., where: (1) the Division sent the parties a notice indicating that any party wishing to engage a court reporter at the hearing would be allowed to do so, (2) the Administrative Law Judge stated on the record that a court reporter was recording the proceedings, and (3) the court reporter did in fact take down the entire proceedings. Duarte-Vestar v. Goodwill Indus. (LIRC, 11/09/90).
764 Dismissal of a complaint at close of Complainant's case
The complainant�s evidence of favorable treatment of similarly situated employees not in the complainant�s protected age class, in a hearing on probable cause, was storing enough to withstand the respondent�s motion to dismiss, when considered in light of the commission�s consistent advice that mid-hearing motions to dismiss should be granted only in the clearest and most unambiguous circumstances, when there is no reasonable way the complainant can prevail.� The comparators were sufficiently comparable to make it plausible that they received more favorable treatment for similar conduct, at least without further explanation from the employer.�� Binversie v. Manitowoc Tool & Manufacturing, Inc. (LIRC, 03/28/13).�
It is an error to grant a motion to dismiss in the middle of a hearing where the complainant has made out a prima facie case of discrimination that has not been rebutted by any evidence from the Respondent.� Gilmore v. Beverly Living Center (LIRC, 1/29/13).
There is no statute, rule, or other authority which requires that when a Respondent moves to dismiss a complaint at the close of the Complainant's case, the Administrative Law Judge must issue a decision on the sufficiency of the Complainant's case before the hearing can continue. An Administrative Law Judge may simply decline to rule on such a motion, leaving it to the Respondent to decide whether it wishes to either rest without offering any evidence, or to put on its case. Dieterich v. Lindengrove (LIRC, 12/29/08).
A dismissal at the close of the Complainant's case in chief should only be issued where it is clear that, whether or not the Respondent introduces any evidence on its behalf, there is simply no way in which the Complainant can reasonably prevail. In all but the clearest and most unambiguous of circumstances, the best practice is to require the Respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. Arvin v. C&D Technologies (LIRC, 10/31/08).
Dismissals at the end of the Complainant's case should be granted only after careful consideration and in the most narrow of circumstances. Often a Respondent has a strong defense which could be presented expeditiously and without unduly prolonging the hearing, yet it opts to request a dismissal on the mistaken belief that such a resolution best serves its interests. The Respondent may be better off taking the time to put on its evidence and run the risk that a higher level decision-maker will disagree with the Administrative Law Judge's conclusion that the Complainant failed to meet his evidentiary burden and remand the case for further hearing. Cappelletti v. OceanSpray Cranberries, Inc. (LIRC, 02/15/08).
A dismissal at the close of the Complainant’s case-in-chief contemplates a circumstance in which it is clear that, whether or not the Respondent introduces any evidence on its behalf, there is simply no way in which the Complainant can reasonably prevail. Roberge v. Dept. of Agric., Trade and Consumer Protection (LIRC, 05/31/05).
The proper standard to be applied in deciding a motion to dismiss at the close of a Complainant's case in chief in a probable cause proceeding is whether, based on the evidence of record, the Complainant has sustained his burden of proving that probable cause exists to believe that discrimination occurred as alleged in the complaint. The facts to be relied upon in deciding such a motion are not those viewed as most favorable to the Complainant, but instead those established by the credible evidence of record. Josellis v. Pace Inds. (LIRC, 08/31/04).
Where a Complainant appears at a hearing but does not put in any evidence, a summary order of dismissal is appropriate because the failure to present any evidence establishes as a matter of law that there has been a failure of proof. Oriedo v. Madison Area Tech. College (LIRC, 07/24/98).
The Commission has cautioned against dismissal of a complaint at the close of a complainant's case without full knowledge of the facts the complainant needs to present in the case and without full knowledge of what evidence has been presented at the hearing. There is no evidence here, though, that the ALJ lacked this knowledge. Simply because the hearing was continued and there was a 149-day gap between the two hearing days is not sufficient to establish that the ALJ had lost her recollection of the evidence or was not in command of what complainant needed to establish her case. The ALJ also did not err in not giving any reasons for her decision when she dismissed the complaint at hearing. Even in a written decision, an administrative agency need not set in detail out what evidence it believed and what it rejected, and it has been deemed unnecessary for administrative agencies to give reasons for the implied rejection of all alternatives, as this would be too onerous a burden. Nothing in Chapter 227 requires an ALJ to announce the reasons for a bench ruling. Vaisman v. Aldridge, Inc. (LIRC, 10/21/91), aff'd, Vaisman v. LIRC (Milwaukee Co. Cir. Ct., 01/25/93).
ALJs may decide a case at the close of the complainant's case in chief on motion of a respondent. While it is true that before making such a decision an ALJ must be fully knowledgeable of what facts a complainant needs to prove in order to prevail and of exactly what evidence has been presented at the hearing, these requirements can be fulfilled when the ALJ properly understands the issues in the case and has carefully paid attention to and considered the evidence of the complainant as it comes in during the course of the complainant's case in chief. The ALJ here attentively evaluated the evidence as it came in and was prepared to rule. Chacon v. Dairy Equipment Company (LIRC, 02/15/91)
An employer's true motivation is an elusive factual question, the determination of which is difficult to ascertain and generally unsuitable for summary disposition of an employe's claim of retaliatory discharge. Frierson v. Ashea Indus. Systems (LIRC, 04/06/90).
Caution must be exercised in granting a request to dismiss a complaint at the close of a Complainant's case. Before granting such a request, the Administrative Law Judge must be fully knowledgeable of what facts a Complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing. In this case, the Administrative Law Judge erred in dismissing the complaint at the close of the Complainant's case where the Complainant's evidence demonstrated that she made it known to the Respondent that she was seeking another position, that she was qualified to perform the administrative assistant job, and where she was never considered for the job and a person of another race was hired. Holcomb v. American Convenience Products (LIRC, 03/25/88).
The Administrative Law Judge erred in dismissing the complaint at the close of the Complainant's case where the Complainant had made out a prima facie case by proving that she had been pregnant, that she had been capable of performing her job as evidenced by having passed her probationary period less than two weeks before she was fired, that she had only been criticized for her performance by her foreman on one occasion and that after that occasion she performed her job as required, and that she was discharged about two weeks after she first informed the employer she was pregnant. Although evidence concerning the Respondent's asserted reasons for terminating the Complainant - that she was slow and bossy - apparently was received into the record during the Complainant's case in chief, the Complainant offered evidence to show that those reasons were pretextual. Matthes v. Schoeneck Containers (LIRC, 03/11/88).
The examiner erred in dismissing at the close of the Complainant's case his claim that he was discriminated against because of his race when the employer discharged him, supposedly for abetting a fraud in connection with his employment. The evidence offered at the hearing did not establish the Respondent's nondiscriminatory reason. The matter was remanded for further proceedings, to allow the Respondent to present its case in chief. Browder v. Best Food (LIRC, 01/09/87).
If testimony from a Respondent's witness or witnesses comprises an integral part of a Complainant's case, then it is the Complainant's responsibility to call those witnesses adversely to ensure that the testimony will be a part of the record. If the Complainant rests his or her case in chief without presenting such testimony, and if the Complainant's case in chief has not presented sufficient evidence to satisfy the required burden of proof, the complaint is appropriately dismissed. Mazzara v. Endata, Inc. (LIRC, 01/09/87).
Where a complaining party had established a prima facie case, the hearing examiner could not dismiss the case and the employer is obliged to present rebuttal evidence. Jenkins v. Allis Chalmers (LIRC, 10/11/77).
765 Failure to appear at hearing
There is a rebuttable presumption that properly mailed notices are received. Where there was proper mailing of a notice of hearing and the item was not returned by the post office, the complainant failed to rebut the presumption because her assertion of non-receipt was not plausible; the attorney who made the assertion on her behalf did not have first-hand knowledge of whether his client received the notice. Burright v. Ashley Furniture Indus., Inc. (LIRC, 07/22/2015).
A party's failure to notify the ERD of a new mailing address is not fatal to a
claim that he had good cause for missing the hearing because he did not receive
the notice, provided the party can show that he took reasonable steps to update
his address with the United States Postal Service and there is no other reason
to believe that he was aware of or should have been aware of the hearing date.
Ford v. Chicago Grill (LIRC, 2/27/15)
The Complainant missed the hearing because she recorded the incorrect hearing time on her calendar. The Commission rejected her claim that the error was the Respondent's fault because of the distress its alleged discrimination had caused her. Failure to pay sufficient attention to notices from the ERD is not “excusable neglect,” but the result of carelessness or inattentiveness. Murphy v. Wal-Mart Stores, Inc. (LIRC, 8/12/14).
The commission continues to take the view that a complainant who disagrees with rulings of an ALJ is required to proceed with the hearing in order to preserve his right to review of those rulings on appeal, and that if the complainant instead refuses to proceed with the hearing due to his objections to the rulings, and his complaint is dismissed as a result, he is deemed to have waived his objections to those rulings. This rule is important to the integrity of the system in place for litigation, appeal and review of Equal Rights cases, because it secures the non-appealability of interlocutory decisions of ALJs. Mullins v. Wauwatosa School Dist. (LIRC, 05/17/13).
The Complainant's failure to pay sufficient attention to the hearing notice from the Equal Rights Division, which changed the hearing date from one date to another date, is a clear example of carelessness or inattentiveness of the kind that may not be considered "excusable neglect." The Complainant did not show good cause for his failure to appear at the hearing. Allen v. Miles Kimball Co. (LIRC, 12/28/12).
A party's lack of a car cannot, standing alone, always be considered good cause for failure to appear at a hearing. It must be determined whether the party who did not have a car had time to make alternative transportation arrangements. Also, the party must make efforts to contact the Equal Rights Division to advise it of problems that might create the need for a postponement of the hearing. In this case, the Complainant had almost three months to look into making arrangements to get to the hearing. She never said anything to the Equal Rights Division about needing a postponement or a change in the hearing location. The Complainant failed to establish good cause for failing to appear at the hearing and her case was appropriately dismissed. Clemons v. Senior Helpers (LIRC, 11/20/12).
The Respondent's motion to dismiss was properly granted where the Complainant abruptly left the hearing without presenting any evidence. A Complainant bears the burden of proof. The Complainant's failure to present any evidence establishes as a matter of law that there has been a failure of proof. Robinson v. Schlossmann's Imports (LIRC, 05/31/12).
A party's plausible assertion that it did not receive a notice of hearing, and that this was the reason for failing to appear at the hearing, cannot be rejected or resolved without providing an opportunity for hearing. While the circumstances in this case suggest that the Complainant should have received the notices of hearing, his contention that he did not receive any notice of hearing cannot be rejected without allowing an opportunity for hearing on that question. The case was remanded to the Equal Rights Division for a hearing to address whether the Complainant had received notice of the first hearing held in this matter. Hernandez v. Starline Trucking Corp. (LIRC, 02/29/12).
The failure of parties to appear at scheduled hearings before the Equal Rights Division is a significant challenge to calendaring the many cases which the Division is called upon to hear. It is appropriate that ALJs with crowded hearing calendars may seek to clarify the parties' intentions prior to the day of hearing. It was understandable for the ALJ in this case to seek to clarify whether the Complainant, whose mailing address was in California, intended to appear at the hearing. The ALJ did not demonstrate bias by contacting the Complainant's daughter, who had been listed as the contact person for the Complainant on the complaint form. The Complainant's argument that she did not appear at the hearing because the ALJ was not impartial or that the ALJ had predetermined the outcome of the case was rejected. Elizalde v. Teamsters Gen. Local #200 (LIRC, 02/21/12).
A party who requests a new hearing based upon a failure to appear at the original hearing must demonstrate good cause for the failure to appear. Good cause has been defined to mean excusable neglect (i.e., the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances). Alvey v. First Student, Inc. (LIRC, 08/22/11).
The fact that the Respondent also failed to appear at the hearing did not provide a basis for overlooking the Complainant's failure to appear. The consequences are different when a respondent fails to appear at a hearing. Section DWD 218.18, Wis. Admin. Code, provides that if the Complainant fails to appear and to proceed the Administrative Law Judge shall dismiss the complaint. The rule further provides that if the Respondent fails to appear at the hearing the hearing shall proceed as scheduled. A complainant must always show up and put in a case even if a respondent has not appeared because the complainant bears the burden of proving that he or she was discriminated against. Parks v. Walnut Grove (LIRC, 03/31/11).
In order to establish good cause for failing to appear at a hearing, a party must show that the failure to appear was either the result of excusable neglect or a reason which, if established by competent evidence, would amount to circumstances beyond the individual's control or which would otherwise have prevented or made it unreasonable for the party to appear. The failure to appear for the hearing must be explained with a degree of specificity adequate to allow a reasoned assessment by the decision-maker of whether it is probable that good cause for the failure to appear could be established. Ellingsworth v. Humana Ins. (LIRC, 12/30/10).
Section DWD 218.18(4), Wis. Admin. Code, provides that an Administrative Law Judge may reopen a hearing if, within ten days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear. This rule does not mean that a party's assertions that are submitted more than ten days following the hearing may not be considered. However, once an Administrative Law Judge's decision has been issued, a party's written objection to that decision should generally be treated as a petition for LIRC review. Ellingsworth v. Humana Ins. (LIRC, 12/30/10).
The Complainant in this case established good cause for her failure to appear at the hearing. She submitted a discharge summary from a hospital indicating her diagnosis and treatment for a head injury two days prior to the hearing. The Respondent's argument that this document was hearsay was rejected. Since sec. DWD 218.18(4), Wis. Admin. Code, requires that a party failing to appear at a hearing show good cause 'in writing' for the failure to appear, this 'writing' will undoubtedly be hearsay. Ellingsworth v. Humana Ins. (LIRC, 12/30/10).
As a general rule, factual assertions as to a person's reasons for failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests that he or she may be able to demonstrate good cause for failing to appear. Cottingham v. McDonald's (LIRC, 08/25/10).
A Complainant whose case has been dismissed for failure to appear at a hearing must demonstrate, on appeal, that there was good cause for the failure to appear. Good cause has been defined to mean either that the failure to appear was the result of excusable neglect (i.e., the degree of neglect a reasonable, prudent person might be expected to commit in similar circumstances), or a reason which, if established by competent evidence, would amount to circumstances beyond the individual?s control or which would otherwise have prevented or made it unreasonable for the Complainant to appear. The failure to appear for the hearing must be explained with a degree of specificity adequate to allow a reasoned assessment by the decision-maker of whether it is probable that good cause could be established. Schwarz v. Gateway Tech. College (LIRC, 04/23/10), aff'd. sub nom. Schwarz v. LIRC (Racine Co. Cir. Ct., 08/16/10).
A Complainant who did not appear at the hearing must, in appealing the dismissal of his case, offer an explanation which, if proved, would demonstrate that he had good cause for his failure to appear. Even if the Complainant had presented a postponement request to the Equal Rights Division which the Division failed to address, this circumstance would not establish good cause for his failure to appear at the scheduled hearing. The Complainant had reason to be aware that a postponement request had not been granted in his case and that the Division had not granted his request to appear by telephone rather than in person, yet he failed to appear at the noticed hearing. These were not the actions of a reasonably prudent person. Amos v. McDonald’s (LIRC, 05/25/07).
The Complainant refused to proceed at the hearing because he objected to the Administrative Law Judge’s decision not to postpone the hearing. The complaint was properly dismissed as a result of the Complainant’s failure to proceed and present evidence in support of the complaint. Jackson v. Transwood, Inc. (LIRC, 04/27/07).
A Complainant whose complaint has been dismissed for failure to appear at the hearing may have the hearing re-opened, provided the Complainant can show good cause in writing for the failure to appear. Good cause is a reason which, if established by competent evidence, would amount to circumstances beyond the individual's control, or which would otherwise have prevented or made it unreasonable for the Complainant to appear. Kieck v. Mas Graphics (LIRC 08/28/06).
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 that he may be able to demonstrate good cause for failing to appear. Kieck v. Mas Graphics (LIRC 08/28/06).
The Complainant asserted on appeal that she did not appear for her hearing because she could not find a lawyer who would take her case. 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 Equal Rights Division’s rules. 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. Therefore, the Complainant did not show good cause for her failure to appear at the hearing. Whitt v. Alterra Wynwood of Madison West (LIRC, 07/15/05)
A party who disagrees with rulings rendered by an Administrative Law Judge prior to hearing is required to proceed to hearing, preserving her objections to such rulings on the record for review on appeal. If the Complainant instead refuses to proceed with the hearing due to her objections to the Administrative Law Judge’s rulings, and her complaint is dismissed as a result, the Complainant is deemed to have waived her objections to these rulings. Casetta v. Zales Jewelers (LIRC, 06/14/05).
A Complainant is expected to manage his personal and work life in a manner which will enable him to prepare for, and to attend, a scheduled ERD hearing. Parties are expected to take time off from work to attend scheduled hearings. Wallace v. Laidlaw Transit(LIRC, 02/24/05).
In order to establish good cause for failing to appear at a hearing, the non-appearing party must offer an explanation which, if proved, would demonstrate that the failure resulted from excusable neglect, which is the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances. Even if the party had presented a postponement request to the Department which it failed to address, this circumstance would not provide good cause for failing to appear at the scheduled hearing. Wallace v. Laidlaw Transit (LIRC, 02/24/05).
It interferes with the process established by sec. DWD 218.18(4), Wis. Adm. Code, for an Administrative Law Judge to issue an order of dismissal based upon a Complainant’s failure to appear at a hearing before the ten-day review process referenced in that provision has expired. Wallace v. Laidlaw Transit (LIRC, 02/24/05).
A Complainant whose case was dismissed for failure to appear at a hearing must demonstrate, on appeal, that there was good cause for the failure to appear at the hearing (i.e., that the failure resulted from excusable neglect). This failure to appear must be explained with a degree of specificity adequate to allow a reasoned assessment by the decision-maker of whether it is probable that good cause could be established. The Complainant's failure to appear because she looked at the wrong document for the date of hearing did not amount to excusable neglect in this case. Excusable neglect is not synonymous with neglect, carelessness or inattentiveness. Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances. The circumstances presented here indicate that the Complainant's failure to appear for her scheduled hearing was not the act of a reasonably prudent person, but was the result of carelessness or inattentiveness. Martin v. County of Milwaukee (LIRC, 12/17/04).
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 that they may be able to demonstrate good cause for failing to appear. Whitlow v. Air Trans Airways (LIRC, 12/13/04).
It interferes with the process established by sec. DWD 218.18(4), Wis. Adm. Code, for an Administrative Law Judge to issue an order of dismissal based upon a Complainant's failure to appear at a hearing before the ten-day review process referenced in that provision has expired. Casetta v. Zales Jewelers (LIRC, 06/25/04).
A party who cannot read English, or who does not read English well, has an obligation to have documents translated. In this case, the Complainant was able to file a complaint, to read or have translated the initial determination, and to take appropriate action to file a timely appeal. She was also able to read or have translated the Administrative Law Judge's dismissal order, and she filed a timely petition for review. There was no reason to believe that the Complainant was not capable of understanding, or gaining understanding of, the hearing notice, not withstanding her lack of facility with English. Her failure to do so did not provide her with good cause for missing the hearing. Accordingly, the dismissal of her complaint was affirmed. Further, the Labor and Industry Review Commission denied the Complainant's request that it issue its decision in this matter in Spanish. If the Complainant had difficulty reading the decision of the Commission, it was her obligation to have it translated. Hernandez v. Sara Lee Corp. (LIRC, 05/21/04).
Where a Complainant does not have good cause for failing to appear at the hearing, the dismissal of the complaint is required. This applies equally to those parties who are represented by counsel, and those who choose to proceed pro se. Hinkforth v. Bricklayers & Allied Craftsmen Dist. Council (LIRC, 02/23/04).
The department’s administrative rules permit an Administrative Law Judge to reopen a hearing upon the request of a party who failed to appear at the initial hearing if the party establishes good cause for failing to appear within 10 days after the date of hearing. Upon concluding that the Respondent had demonstrated good cause for its failure to appear at the first hearing in this matter, the Administrative Law Judge granted its request to reopen, although the ALJ limited the Respondent’s presentation of evidence to that which could have been presented at the initial hearing. This was an appropriate exercise of discretion. Jackson v. Mansur Trucking (Ct. App., Dist. IV, summary affirmance, 12/18/03).
As a general rule, factual assertions as to the grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing where the Complainant suggests that she may be able to demonstrate good cause for failing to appear. Hopson v. Family Dollar Stores (LIRC, 10/30/03).
In order to establish good cause for failure to appear at the hearing, a party must demonstrate that the failure to appear resulted from excusable neglect, and must explain this failure to appear with a degree with specificity adequate to allow a reasoned assessment by the decision maker of whether it is probable that "good cause" could be established. The Complainant here did not establish a single explanation why she failed to appear until one hour after the notice of hearing indicated the hearing was scheduled to commence. The most reasonable inference is that the Complainant failed to carefully read the notice of hearing. This is not sufficient to show good cause. Malone v. Froedtert Memorial Lutheran Hosp. (LIRC, 07/30/03).
An Administrative Law Judge may not dismiss a complaint as a sanction for a Complainant’s abandonment of a hearing when the record contains some evidence upon which factual findings could be made. Rather than dismissing the complaint, the appropriate course under these circumstances would be to treat the Complainant as having rested at the point at which he walks out or otherwise abandons the hearing, to afford the Respondent an opportunity to present its case if it chooses to do so, and to issue a decision based on the adequacy of the evidence presented. Clemons v. Opportunities Industrialization Center of Greater Milwaukee (LIRC, 02/14/03).
The Complainant asserted that he failed to appear at the hearing because he no longer had an attorney. However, there was no indication as to what efforts, if any, he had made to secure another attorney. Furthermore, there was no indication that the Complainant ever notified the Equal Rights Division of his situation and made a request for a postponement or a continuance of the hearing. Therefore, it was appropriate to dismiss the Complainant’s complaint when he failed to appear at the hearing. Alexander v. Unified Solutions, Inc. (LIRC, 01/31/03).
The Department’s rules require dismissal of the case if a Complainant fails to appear at a hearing in person or by a representative. In this case, the Complainant did not appear at the hearing, but her attorney did. While the Complainant’s failure to come to the hearing did not require dismissal of her complaint, her failure to put in any evidence in support of her case was a situation warranting dismissal. Sweet v. M&H Restaurants (LIRC, 11/29/02).
Where the Complainant’s attorney appeared at the hearing, but the Complainant did not because her daughter was ill, the Complainant’s attorney should have requested a continuance. Further, the Administrative Law Judge should have ascertained whether the attorney intended to proceed on the Complainant’s behalf without the Complainant’s presence before dismissing the case. The Complainant was not legally obligated to be present at the hearing, and her attorney could have attempted to make the case based on other evidence available to her. Sweet v. M&H Restaurants (LIRC, 11/29/02).
The Complainant alleged that he had not appeared at the hearing because he had not received the notice of hearing. There is a rebuttable presumption that mail which is properly addressed is delivered and received. The notice of hearing in the Division’s case file showed that the Division had the correct address for the Complainant, and that the Division mailed a notice of the hearing to him. No notice of hearing was returned to the Division as undeliverable by the post office. Therefore, the Complainant did not rebut the presumption that he received notice of the hearing, and the dismissal of his case was affirmed. Vang v. Donaldson Co. (LIRC, 08/29/02).
The Respondent’s failure to appear at the hearing constituted excusable neglect where the Respondent had been sold to a new entity approximately five weeks before the hearing and where the company that had been monitoring the outstanding claims against the Respondent failed to provide the new entity with adequate information regarding the status of outstanding claims against the Respondent. Zollicoffer v. Ryder Student Transp. Services (LIRC, 08/25/00).
The Department’s rule regarding failure to appear at hearing requires more than a mere assertion of good cause; the non-appearing party must explain his failure to appear with a degree of specificity adequate to allow a reasoned assessment by the decision maker of whether it is probable that "good cause" could be established. In this case, the Complainant simply said that he had been "ill and unable to attend." This was insufficient to show good cause for his failure to attend the hearing. Mason v. ASI Technologies (LIRC, 04/17/98).
Where the Complainant merely stated that she had an extreme personal emergency which necessitated her being out of the area during the time of the scheduled hearing, she failed to establish good cause for her failure to appear at the hearing. The Complainant objected to revealing the nature of her emergency; however, the Administrative Law Judge was justified in requiring the Complainant to provide satisfactory evidence which established that she was faced with an unavoidable emergency. Kikkert v. Trinity Evangelical Lutheran Church (LIRC, 09/27/96).
It was not a violation of due process for the Administrative Law Judge to proceed with a hearing and to make a decision based solely on the Complainant's testimony, where the Respondent failed to appear at the hearing. Kaczynski v. Whitlock Auto Supply (LIRC, 07/17/96) aff'd. sub nom. WRS Corp v. LIRC (Dane Co. Cir. Ct., 4/8/97).
Parties are expected to take time off from work in order to attend scheduled hearings. Further, financial constraints do not constitute good cause for a failure to appear at hearing. Accordingly, an Administrative Law Judge appropriately dismissed a case where the Complainant failed to appear at the hearing after requesting, and being denied, a postponement on the ground that she was hospitalized as part of a medical study. Kupferschmidt v. Milwaukee Bd. of School Directors (LIRC, 05/30/96).
A complaint was properly dismissed where the Complainant failed to appear at a prehearing conference. Peterson v. Harvest Life Insurance Co. (LIRC, 04/19/96).
Where a complaint is dismissed for failure of the Complainant to appear at the hearing, the Administrative Law Judge should discuss his or her reasons for denying any last minute request for a postponement that preceded the hearing. Peterson v. Marquette University (LIRC, 07/11/94).
The Complainant established good cause for failing to appear at the hearing where she and her attorney arrived at the hearing one hour late because the attorney had inadvertently recorded the incorrect time for the hearing on her calendar. This was a simple and unintentional mistake made on the part of the Complainant's attorney. Gibbs v. LIRC (Waukesha Co. Cir. Ct., 04/07/94)
A Complainant failed to establish that her failure to appear at the hearing was for good cause. The Complainant asserted that she could not travel 500 miles to attend the hearing and that she could not leave her mother and her four children home alone; however, the Complainant failed to provide requested medical certification or an affidavit establishing that she could not leave her mother's care. Sulliloce v. First Choice Fitness Center (LIRC, 02/18/94).
A new hearing may be ordered if the party who fails to appear shows good cause for that failure. 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 him to appear. Being scheduled for work does not demonstrate such good cause. Parties are expected to take time off from work to attend scheduled hearings. Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).
There is no per se requirement that a Complainant actually be present at a hearing, only a requirement that evidence be presented on the Complainant's behalf. The administrative rule providing for dismissal of complaints based on "failure to appear" cannot be relied upon where the Complainant appears at a hearing but leaves without putting in any evidence. Nevertheless, a summary dismissal order is appropriate because the failure to present any evidence establishes as a matter of law that there has been a failure of proof. Jackson v. City of Milwaukee (LIRC, 10/28/93).
Financial constraints do not provide the Complainant with good cause for failing to appear at the hearing. Russ v. Milwaukee Area Technical College (LIRC, 08/06/93).
It was not reasonable for the Complainant to have concluded that the hearing date had been changed based upon a conversation with the clerk of courts in the county where the hearing was scheduled to be held. The Complainant had a duty to contact the Equal Rights Division about his scheduled hearing. Backey v. John Deere Horicon Works (LIRC, 04/08/93).
The Complainant did not establish good cause for failing to appear at the hearing where he speculated that the notice of hearing may have been lost in the mail. Vogel v. Milwaukee Bd. of School Directors (LIRC, 02/25/93).
There is no requirement that a Complainant appear in person at a hearing. Ind 88.16(5), Wis. Adm. Code, only requires dismissal if the Complainant fails to appear either in person or by a representative. However, a case was properly dismissed, even though the Complainant's attorney appeared at the hearing, where the Complainant failed to put in evidence in support of her case. Cooper v. Janlin Plastics (LIRC, 06/05/92).
The Complainant established good cause for failing to appear at the hearing where he presented evidence to the Labor and Industry Review Commission that he had been incarcerated on the day of the hearing from early morning until the middle of the afternoon. The Complainant's hearing had been scheduled to begin at 9:00 a.m. Young v. Pinkerton Security Service (LIRC, 10/15/91).
The Complainant did not establish good cause for failing to appear at his hearing when he indicated that he did not receive the notice of hearing because he had been arrested and was confined at a federal prison in Pennsylvania. This case is no different from one in which a party moved without notifying the Equal Rights Division of the party's new address and then failed to appear at the hearing (or to notify the Equal Rights Division of inability to attend) because of failure to receive the notice of hearing. A party has an obligation to keep the Equal Rights Division informed of his address. A party cannot be allowed to create "good cause" for failure to appear at a hearing by moving without notifying the Equal Rights Division of his new address and thus avoiding the notice of hearing. Moses v. Northshore Healthcare Center (LIRC, 06/06/91).
Where the complaint identified the Respondent's Wisconsin address, and where the Respondent did not directly request the Equal Rights Division to serve notices on its corporate offices in Dallas, Texas, the Respondent could not justify failing to appear at the hearing on the ground that it did not receive the notice of hearing at its corporate office in Texas. The Respondent conceded that the notice of hearing had been received at its Wisconsin location. Orwen-Richter v. Royal Int'l. Optical (LIRC, 05/03/91).
The Complainant had good cause for failing to appear at the hearing where he was summoned for jury duty on the day of the hearing and where he mailed a copy of the jury summons to the Administrative Law Judge and to an Equal Rights Division Bureau Director prior to the date of the hearing. Hahn v. Waupaca County Dept. of Human Resources (LIRC, 02/14/91).
LIRC will remand a case to the Administrative Law Judge to take testimony on the Respondent's reasons for failing to appear at the hearing, rather than making that determination itself on the basis of an affidavit from the Respondent. Moore v. Holst Excavating, Inc. (LIRC, 02/12/91).
The Commission was not persuaded that the Complainant failed to receive notice of the hearing because: (1) the Department's file indicated that the Complainant was mailed a notice of hearing which was not returned as undeliverable, (2) the Respondent mailed a copy of its list of witnesses and exhibits to the Complainant, and (3) based on its having previously reviewed several of the Complainant's discrimination cases, LIRC took administrative notice of the fact that the Complainant was aware of the significance of the Respondent's witness and exhibit list. Young v. Leach (LIRC, 12/18/90).
Where a complaint is dismissed for failure to appear at the hearing, the Administrative Law Judge must discuss in his order of dismissal his reasons for denying any last minute request for postponement. A functionally equivalent situation is presented when a last minute request for postponement is made and denied and the Complainant, while initially present at the hearing, refuses to present any evidence and leaves. Jackson v. City of Milwaukee Public Library (LIRC, 12/14/90).
The complaint was dismissed where the Complainant failed to appear at the hearing. The Complainant had three months notice that the law firm which had been representing him would no longer do so and there was no indication that he did anything to obtain other counsel during that period. Kranz v. Marc's Big Boy (LIRC, 08/08/90).
The Complainant did not have good cause for failing to appear at the hearing. The Complainant claimed that she did not receive a Notice of Hearing. However, even assuming that the Complainant did not get actual notice, she did receive copies of the Respondent's answer and its witness and exhibit list, which put her on notice that her hearing was scheduled to take place very soon. The Complainant's failure to contact the Department to find out the date of the hearing or to request a postponement was unreasonable. Feaster v. Dillingham, N.A., Inc. (LIRC, 06/29/90).
Where the complaint is dismissed for failure of the Complainant to appear at the hearing, the Administrative Law Judge must discuss the reasons for denying any last-minute request for postponement. The absence of explanation may, in some cases, require a remand for further proceedings. Jaskolski v. M & I Data Services (LIRC, 05/23/90).
The fact that a party filed a request for a postponement and had not received any response to the response from the Division did not justify the party's failing to appear at the hearing. Jaskolski v. M & I Data Services (LIRC, 05/23/90).
The Complainant is entitled to a hearing on whether he had good cause for failing to appear at the hearing after his request for a postponement on the ground that he was unable to attend because of medical conditions was denied. The Complainant must prove by competent evidence, and to a reasonable degree of medical certainty, that he was unable to attend because of a medical condition. Jones-Browning .Associates Leasing (LIRC, 03/16/90).
After a hearing was continued based on representations by the Complainant's attorney that the Complainant was suffering from a back injury and was physically incapable of participating in the hearing, the Administrative Law Judge learned that the Complainant's representation that her doctor had advised her not to attend the hearing was untrue. Further, the Complainant failed to provide medical documentation that she had been physically unable to attend the hearing. The Complainant's complaint was, accordingly, dismissed. Ludwig v. Eau Claire County Sheriff's Dept. (LIRC, 01/31/90).
LIRC ordered the matter remanded for a hearing as to whether the Complainant had good cause for failure to appear at the hearing, where the Complainant asserted in a timely petition for review that her sister's foster child took a call from a woman who stated that the time for the hearing had been changed. Lonetree v. Ho-chunk Bingo (LIRC, 12/08/89).
The Complainant did not show good cause for failure to appear at the hearing where he contended that he never received notice of the hearing because he had moved to a new address. It was the Complainant's responsibility to keep the Department informed of his current address. Pechacek v. J. C. Penney (LIRC, 11/10/89).
Neither the Complainant's belief that he was going to get a "conciliation hearing," his having to work on the day of the hearing, nor his inability to find a potential witness's address justified his failure to appear at the hearing. Smith v. Menard (LIRC, 02/24/89).
The Complainant's petition to have his case reopened after it was dismissed for his failure to appear at hearing was denied where 39 days had elapsed after the hearing before the Complainant attempted to contact the Department regarding his non-appearance, and no documentation of the Complainant's injury or his attorney's illness was received by the Commission. Holt v. Lee (LIRC, 02/24/89).
The Complainant, who claimed in his petition for review that he had been physically unable to be present at the hearing, had telephoned the Equal Rights Division at 8:30 on the morning of the hearing, and did not call back when the call was disconnected before it could be switched to the Legal Bureau Director. Noting that the Complainant lived in Camp Douglas, Wisconsin, and that his claim that he was "physically unable to be present" could just as easily be interpreted as indicating that he had overslept as indicating that there was an emergency, LIRC affirmed the order of the Administrative Law Judge dismissing the complaint based on the failure of the Complainant to appear. Frohmader v. Milwaukee County Dept. of Social Services (LIRC, 09/30/88).
The Complainant did not have good cause for failing to appear at the hearing merely because he thought an "offer of settlement" had settled the matter, where he failed to offer any evidence that he had agreed to accept the settlement offer made by the Respondent or that the Respondent had agreed to accept the settlement offer made by him. Absent an agreement by the parties to settle the matter, the Complainant could not reasonably have concluded that there was no reason to attend the scheduled hearing. Love v. Dr. Su Ryong Her (LIRC, 08/31/88).
The Administrative Law Judge's dismissal of the complaint based on Complainant's failure to appear at the hearing was affirmed, despite the Complainant's assertion that he failed to appear because he had not received the notice of hearing. The Complainant's assertions were inconsistent: he claimed that he had moved to a new address and informed the Department of his new address, and put in a change of address card at the Post Office, but he also asserted that the current tenant of his former address had held his mail containing the notice of hearing until after the hearing date. Other correspondence from the Equal Rights Division was mailed to the former address, and the Complainant did not assert that he failed to receive that. Phillips v. National Transit Leasing (LIRC, 06/03/88).
A Complainant's failure to appear at hearing was justified where he faced unforeseen difficulties in getting to the hearing from out of state and where he had made every effort to overcome them. Amaya v. Newcap (LIRC, 07/20/83).
In dismissing a complaint for failure of the Complainant to appear at hearing, the examiner must discuss the reason for denying a last minute request for postponement. Schilling v. Walworth County (LIRC, 03/09/83).
766 Interpreters; Translations; Party's inability to speak or read English
The Administrative Law Judge did not err in deciding to hold a hearing on the question of whether the Complainant required an interpreter at the same time as the substantive hearing. McCarthy v. Dungarvin Wisconsin LLC (LIRC, 2/28/14).
A party who cannot read English, or who does not read English well, has an obligation to have documents translated. In this case, the Complainant was able to file a complaint, to read or have translated the initial determination, and to take appropriate action to file a timely appeal. She was also able to read or have translated the Administrative Law Judge's dismissal order, and she filed a timely petition for review. There was no reason to believe that the Complainant was not capable of understanding, or gaining understanding of, the hearing notice, not withstanding her lack of facility with English. Her failure to do so did not provide her with good cause for missing the hearing. Accordingly, the dismissal of her complaint was affirmed. Further, the Labor and Industry Review Commission denied the Complainant's request that it issue its decision in this matter in Spanish. If the Complainant had difficulty reading the decision of the Commission, it was her obligation to have it translated. Hernandez v. Sara Lee Corp. (LIRC, 05/21/04).
The Complainant failed to establish that he was deprived of an opportunity for a full and fair hearing because the individual who served as an interpreter for the hearing was able to communicate effectively in American Sign Language ("ASL"). The record of the hearing established that the interpreter had trained at the National Technical Institute for the Deaf, that she was certified by the National Registry of Interpreters for the Deaf, and that she had many years of experience interpreting for the Deaf. Further, the Complainant failed to cite even a single specific example of any point on which something said by the interpreter supposedly varied from what he told her. Buska v. Central Bldg. Maintenance (LIRC, 09/28/95).
The identity of an interpreter should be noted on the record at the time that he or she is sworn in. The party requesting the interpreter should satisfy himself as to the qualifications of the interpreter by examinating the interpreter as to those qualifications prior to the commencement of his testimony. Buska v. Central Bldg. Maintenance (LIRC, 09/28/95).
Where an interpreter is present at a hearing, the Administrative Law Judge should note the following for the record: (1) the name of the interpreter, (2) what training, experience and other qualifications the interpreter has, and (3) who requested or arranged for the presence of the interpreter at the hearing. Buska v. Central Bldg. Maintenance (LIRC, 04/14/95).
767 Presentation of evidence regarding remedy
The usual practice in discrimination cases is to issue a generally-worded back pay order if a statutory violation is proved, and then to hold a hearing to determine the specific amount of back pay owed if the parties cannot agree. Achilli v. Sienna Crest Assisted Living (LIRC, 01/28/09).
The Respondent contended that, because the practice in proceedings before the Equal Rights Division is to bifurcate the hearing process (i.e., to hear the case on the merits and, if the Complainant prevails, to remand the case for a remedy hearing), the case should be remanded for a remedy hearing where the Respondent should be allowed to argue that the Complainant failed to mitigate her damages. However, the asserted usual practice of bifurcated hearings does not justify the Respondent’s failing to plead the affirmative defense of failure to mitigate damages in its answer; nor does it support the contention that the affirmative defense could first be pleaded after the hearing on liability. Therefore, the Respondent is not entitled to raise the issue of mitigation of damages as a part of a hearing on remedy in this case. Radlinger v. Kentucky Fried Chicken (LIRC, 06/20/03).
Where the Department affirmatively limited the hearing to the issue of whether discrimination had occurred, it was patently unfair to punish the Respondent for failing to produce evidence on the issue of remedy. Milwaukee Bd. of School Directors v. LIRC (Milw. Co. Cir. Ct., 06/14/00).
The usual practice in discrimination cases is to conduct a hearing on the question of whether a statutory violation occurred and to issue a generally worded back pay order if a violation is proven, and then to hold a second hearing if the parties cannot agree on the amount of back pay owed. Kaczynski v. WSR Corp. (LIRC, 10/29/97).
In discrimination cases arising under the Act, the usual practice is to conduct hearings on the question of a statutory violation but not to take evidence on the specific amount of monetary damages. If a statutory violation is proven, generally-worded back pay orders direct the violator to pay that back pay which the victim would have received but for the violation, less the statutory set-offs. If the parties cannot agree on the exact amount of back pay owing, a subsequent hearing is held to make that determination. Toonen v. Brown Co. (LIRC, 10/15/82).
A DILHR hearing under the Wisconsin Fair Employment Act is not a "class two" proceeding since back pay is not a sanction or penalty, and a DILHR examiner may therefore preside at a supplemental hearing to determine a remedy. Appleton Elec. v. LIRC (Kreider) (Dane Co. Cir. Ct., 05/12/81).