MANDRAKE CONNER, Complainant

MOBILE MINI INC, Respondent A

MOBILE MINI INC, Respondent B

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 April 30, 2004
connema . rsd : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

On August 18, 2003, Mandrake Conner filed a timely appeal from an initial determination which found no probable cause to believe that the respondent had terminated his employment because of his race.

On August 21 the ERD issued a notice to the parties advising them that the case was certified for a hearing on the issue of probable cause. The notice included information that a postponement of the hearing would be granted only for good cause and not for the convenience of the parties. The notice was sent to Conner at his address on 94th Street in Milwaukee, an address that Conner had given the ERD as his new address in the previous month of July.

On September 23, 2003, the ERD sent the parties a notice of hearing stating that a hearing on Conner's discrimination complaint was scheduled for 9 a.m. on December 2, 2003. This notice was also sent to Conner at the 94th street address in Milwaukee. Attached to the notice of hearing was an "Information Sheet For Employment Cases." With respect to postponements, the information sheet again advised the parties that postponements would not be granted for the mere convenience of the parties and that:

"If your schedule conflicts with the hearing date in the Notice of Hearing, you must notify the division within ten (10) days after the date of the notice that you need a different date. After this ten-day period, postponements will normally only be granted for unforeseeable emergency circumstances that will prevent a party from presenting their case on the scheduled hearing date."

The notice of hearing identified Alice DeLaO as the ALJ that would be conducting the hearing.

By certified mail dated November 13, Conner sent a letter addressed to the Equal Rights Division in Milwaukee requesting a postponement of the December 2 hearing. Conner requested a postponement so that he could attend a scheduled training period with his new employer, Comcast. Conner stated that "it would put undue strain on me during this initial training period to properly afford my new employer the attention required at basic training and to properly prepare for the hearing vs. Mobil Mini, Inc." Conner enclosed a letter dated November 4, 2003, which indicated that he had been offered a job from Comcast and had accepted it on November 6. The letterhead on this letter showed a New Jersey address for Comcast. The letter Conner enclosed stated that it was anticipated Conner's start date would be November 17 and that there would be five weeks of training. Conner's November 13 letter advised the ERD that his new address was 3807 N. 7th Street in Philadelphia, Pennsylvania 19140.

Conner's letter requesting the postponement is stamped as being received on November 17 by the ERD-Hearing Section. Also, attached to Conner's letter is a post-it note that reads, "This is Alice's [DeLaO's]. Sent to me by mistake. Gary."

Conner did not appear for the December 2 hearing on his complaint of alleged discrimination.

While on the record at the scheduled December 2 hearing, DeLaO noted that Conner had not contacted her in any way, shape or form since the matter had been assigned to her. The respondent's witnesses, two of which had come from out of state (Arizona and Texas) were prepared to proceed with the hearing. The respondent's counsel stated that she received a call from Conner on December 1 at 1:40 p.m. in which he informed her that he would not be at the scheduled hearing because he had procured employment in Philadelphia, and had notified the Division two weeks earlier by letter that he would be requesting a postponement and notifying the department he would not be present. Respondent's counsel stated that she never received a copy of that letter.

Since the respondent's counsel stated that she had gotten a call from Conner stating he had previously contacted the ERD, DeLaO consulted a number of people at the ERD that could have possibly received Conner's letter. DeLaO indicated that the Investigation Section Chief, Johnny Kimble, who had just returned from vacation on December 2, advised her that he found a voicemail message for him left by Conner on November 26. DeLaO stated that in the voicemail message Conner apparently asked Kimble about getting an extension or postponement because of a hearing he had coming up. (1)

DeLaO indicated that since she was the person that Conner should have directed any request for postponement to but had not, since she had not granted any postponement and given the fact that the respondent had flown in people for the hearing from out of state, she would be issuing an order of dismissal.

In a letter to the parties dated December 2, DeLaO recounted the above events.

On December 3, DeLaO wrote to the parties stating that at 3:30 p.m. that day she was given Conner's letter that had been filed with the Division on November 17, 2003. DeLaO stated that she was informed that Conner's letter had been mistakenly sent to an ALJ stationed up north, and had just been returned to the Milwaukee office that day.

DeLaO stated that although it was unfortunate that Conner's letter had been misdirected, it was her determination that Conner's complaint should be dismissed nevertheless. DeLaO noted several reasons for this determination. DeLaO stated that it appeared from Conner's employment offer that he had discussed starting with the new employer on November 17 but he did not indicate that that date would conflict with an existing engagement he had on December 2. DeLaO stated that the offer of employment letter invited Conner to contact the new employer if he had questions about the letter or ability to comply with the terms of the offer but it does not appear that Conner ever made any attempt to ask the employer to allow him to start later or interrupt his training to attend the previously scheduled December 2 hearing. DeLaO stated that given that Conner had been aware of the December 2 hearing since September 23, his failure to arrange, or make any attempt to arrange, his upcoming employment schedule to allow him to proceed, was unacceptable.

DeLaO also noted that after 10 days from the date of the notice of hearing, postponements are only granted based on unforeseen emergency circumstances and that Conner's decision to accept a new job in a different state without making any attempt to accommodate a prior commitment to attend the December 2 hearing is not an unforeseen emergency situation

Further, DeLaO determined that the mistake in misdirecting Conner's November 17 letter did not excuse his failure to appear. DeLaO noted that Conner was aware of the hearing date and he was aware he had not received any information indicating that a postponement had been granted, but did not contact her to see why his postponement had not been granted. Further, DeLaO noted that per Kimble, Conner knew from Kimble's voicemail that Kimble would not be back until December 2, but Conner did not attempt to speak with anyone else at the Division who could deal with the postponement request on December 1. DeLaO stated that although knowing he had not been granted a postponement, Conner then called respondent's counsel and informed her he would not be appearing for the hearing, but by that time the respondent had already flown in two people from out of state and arranged for two local witnesses to rearrange their workday to appear for the December 2 hearing. DeLaO stated that the respondent should not have to pay a second time to have its witnesses flown in and to pay its attorney to prepare a second time for another hearing because Conner failed to act diligently.

DeLaO concluded that Conner's failure to act diligently to follow up on his request for a postponement and his failure to appear when he knew his request for a postponement had not been granted was unacceptable and therefore a dismissal of Conner's complaint was appropriate.

Based on Conner's failure to appear for his scheduled hearing, on December 4, DeLaO issued an order dismissing his complaint.

By letter dated December 16, and received by the Division on December 19, Conner requested to have the hearing reopened "Due to the blatant disregard and mishandling" of his November 13, 2003 letter.

DeLaO issued a letter on December 19 denying Conner's request to reopen the hearing. DeLaO stated that had she received Conner's postponement request on or about Nov 17, she would have denied his request because it was untimely and not based on unforeseen emergency circumstances. DeLaO stated that Conner was aware he had never been granted a postponement and given this he had an obligation to prepare for and appear at the hearing. DeLaO stated that if Conner was concerned about not receiving a response to his request for a postponement, he should have contacted her, or at least the Hearing Section, a week or more before the hearing to inquire about the failure to receive a response to his request, but instead he left a voice mail message for the Investigation Section Chief, even though the voicemail greeting stated he was not in the office on December 1 and would not be until December 2. DeLaO stated that Conner then proceeded to call the respondent's attorney and state that he would not be appearing for hearing, but by this time the respondent had already paid to have two witnesses flown to appear for hearing. DeLaO stated that despite knowing he had not been granted a postponement, Conner failed to make arrangements to appear for the hearing.

DISCUSSION

With respect to hearings, Wisconsin Administrative Code DWD 218.18 provides in relevant part as follows:

(2) POSTPONEMENTS AND CONTINUANCES. All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.
. . . 
(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."

Conner's reason for his failure to appear for his hearing is tied to his request for a postponement of the December 2 hearing. Conner argues that the state, the ALJ, the department and the Equal Rights Division Hearing Section has "denied him representation by willfully accepting his certified mail request dated 11-13-03 and received 11-17-03; then treating it with junk and bulk mail respect." Conner argues that a timely request for postponement was requested.

Conner has not shown good cause for his failure to appear for the December 2, 2003 hearing. First of all, while it is quite likely that Conner was precluded from requesting a postponement within 10 days after the September 23 notice of hearing (2)  since the job offer he received and accepted occurred in early November, in order to be granted a postponement he still had to establish good cause for the postponement. Conner requested a postponement so that he could attend a scheduled training period with his new employer, Comcast. Conner stated that "it would put undue strain on me during this initial training period to properly afford my new employer the attention required at basic training and to properly prepare for the hearing vs. Mobil Mini, Inc." However, DWD § 218.18(2) states that "Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys." Conner's request for a postponement was a postponement request merely for his convenience. Furthermore, Conner had known since the latter part of September that a hearing was scheduled for December 2 on his complaint of discrimination. Conner thus had almost eight weeks to prepare for the hearing on his discrimination before he was to begin his training with Comcast on November 17. Moreover, the commission has consistently held that parties are expected to take time off from work to attend scheduled hearings. Kupferschmidt v. Milwaukee Board of School Directors (LIRC, 05/30/96); Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).

Second, in addition to being a postponement request merely for his convenience, when he requested the postponement, Conner also apparently failed to mail a copy of the request to all other parties at the time the request was filed with the Division. The respondent's counsel has submitted an affidavit in which she states that Conner had not copied her on his November 13 request for a hearing postponement or contacted her in any way prior to December 1 to tell her that he would not be attending the December 2. The affidavit of the respondent's counsel states that the respondent had subpoenaed one witness, who was in transit to the hearing, to appear and testify at the December 2 hearing, and that it had been required to pay and fly in a witness from Texas and a witness from Arizona the night before the scheduled hearing.

Third, the mere fact that Conner had requested a postponement of the hearing did not constitute good cause for his failure to appear when he had never received a response from the ERD that his request was granted. Jaskolski v. M & I Data Services (LIRC, 05/23/90). While it is unfortunate that Conner's postponement request that was filed with the Division on November 17 was misrouted, he was still nevertheless aware that no postponement had been granted and should have contacted ALJ DeLaO regarding the status of his request. DeLaO was listed as the administrative law for the hearing on the notice of hearing. Conner evidently never did attempt to contact ALJ DeLaO as DeLaO stated at the scheduled December 2 hearing that Conner had not contacted her in any way, shape or form since the matter had been assigned to her.

cc: Attorney Autumn M. Kruse

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) Apparently some time after going off the record, on the form used at the hearing by ALJs to list the witnesses, exhibits offered and accepted, etc., DeLaO noted that Kimble corrected the date of the voicemail message received from Conner to state that it had been left at 1:38 p.m. on Monday, December 1.

(2)( Back ) The notice of hearing was mailed to Conner at his Milwaukee, Wisconsin address. There is no dispute that Conner received the ERD's notice of hearing. There is also nothing in the case file that indicates that Conner had notified the ERD that he had a new address prior to November 17, 2003.

uploaded 2004/05/03