MARY A MURPHY, Complainant

WAL-MART STORES INC, 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 August 12, 2014
murphym_rsd . doc : 164 : 5   765

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In her petition for commission review the complainant argues that she failed to appear at the hearing due to an unintentional oversight--she wrote down the hearing time as 1:00 p.m., when the hearing was actually scheduled for 9:30 a.m. The complainant suggests that the respondent is to blame for this error. She states that the respondent deliberately presented misleading information to the investigator, resulting in the dismissal of her case. The complainant maintains that the respondent's actions caused her personal distress and anxiety, leading her to inadvertently write down the incorrect hearing time.

The complainant's argument fails. In the petition for review a non-appearing complainant must demonstrate that she had good cause for her failure to appear at the hearing, i.e., that her failure resulted from excusable neglect, and must explain this 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. Martin v. County of Milwaukee, ERD Case No. 200304928 (LIRC Dec. 17, 2004). Excusable neglect is not synonymous with neglect, carelessness or inattentiveness; it is that neglect which might have been the act of a reasonably prudent person under the same circumstances. Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832 (1969). Failure to pay sufficient attention to notices from the Equal Rights Division concerning the scheduling of hearings is not "excusable neglect." Allen v. Miles Kimbel Company, ERD Case No. CR200900132 (LIRC Dec. 28, 2012). 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 on her part. While the complainant contends that her mental state has been adversely affected by the respondent's actions during the course of these proceedings, she has presented nothing to suggest that she was so debilitated by stress and anxiety that she was unable to manage her own affairs, and the commission sees no reason to believe this was the case. To the contrary, all of the complainant's submissions indicate that she was prepared to appear at the hearing and eager to present evidence on her behalf, but that for reasons she is unable to explain, she believed that the hearing was scheduled at a different time than the time indicated on the hearing notice. The commission agrees with the administrative law judge that the complainant's failure to appear under these circumstances was not for good cause. Accordingly, the dismissal of her complaint is affirmed.

NOTE: Subsequent to the completion of the commission's review of this matter, but prior to its issuance of a decision, the respondent's attorney contacted the commission to request that it set a briefing schedule, and asked that the initial briefs be submitted after November 14, 2014. Given that the commission has already completed its review and has arrived at a decision favorable to the respondent, the request for a briefing schedule is denied.

cc:
Attorney Sofija Anderson
Attorney Adam-Paul Tuzzo

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