CRAIG R MATOUSEK, Complainant

SEARS ROEBUCK AND COMPANY, 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 administrative law judge. Based on its review, the commission decides as follows:

This is a conviction record discrimination case. On April 23, 2004, the Equal Rights Division mailed notice to the parties that hearing on the merits of the complaint would be conducted on July 13, 2004. Complainant does not dispute that he received this notice of hearing. The complainant did not appear for the noticed hearing. In correspondence mailed to the complainant and his probation officer on July 13, 2004, the administrative law judge provided a period of 20 days within which the complainant could explain why he was not at the hearing and why he did not contact the administrative law judge prior to hearing. The complainant did not respond to this correspondence within this 20-day period and, as a result, the administrative law judge issued an order of dismissal on August 20, 2004.

In the administrative law judge's July 13 correspondence, he states in part as follows:

The attorney for Sears, Mr. Ganzer, told me that he had spoken to your probation officer after you failed to show for the [June 25, 2004} mediation session, and that your probation officer said that you had been incarcerated on a probation hold and could not come to the hearing. In addition, I received a message in the afternoon of July 12, 2004 from a person who indicated that you were her uncle and that you could not come to the hearing because you were in jail.

In his petition, the complainant indicates that he was unexpectedly incarcerated on June 24, 2004, for violating the terms of his probation, and has remained incarcerated, although at different locations, since that time; in each of these locations, he has only been permitted to make collect phone calls; prior to the date of hearing, he was under the impression that his probation officer would be contacting the hearing office and explaining his circumstances; in the event that his probation officer had not followed through, he asked his nephew to call the hearing office prior to the date of hearing; some time after August 20, he requested that his sister open his mail; and it was then that he first saw the July 13 letter from the administrative law judge and the August 20 order of dismissal.

Section DWD 218.18(2) of the Wisconsin Administrative Code provides 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 of hearing 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.

Section DWD 218.18(4) of the Wisconsin Administrative Code provides as follows:

(4) FAILURE TO APPEAR AT HEARING. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If, within 10 days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

A non-appearing complainant, in a petition to the commission, must offer an explanation which, if proved, would demonstrate that he had good cause for his failure to appear at the hearing, i.e., that his failure resulted from excusable neglect, the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances. Mason v. ASI Technologies, ERD Case No. 199703647 (LIRC April 17, 1998). Obviously, the complainant's inability to attend the hearing given his involuntary confinement would satisfy this good cause standard.

The remaining issue then is whether the complainant exercised reasonable diligence in presenting a meritorious postponement request to the administrative law judge. It is first noted in this regard that the administrative law judge should have interpreted the communications he received on behalf of the complainant as requests for postponement of the scheduled hearing. Since the complainant would be incarcerated at the time of the hearing, good cause existed for such a postponement request. The remaining question then is whether the complainant exercised reasonable diligence in presenting his postponement request to the administrative law judge.

The complainant represents that he was under the impression after June 24 that his probation officer was going to call the hearing office "in a timely manner to explain the situation;" and, when he did not learn whether or not this had resulted in the postponement of the hearing, he asked his nephew to call. The fact that he made these requests is reinforced by the statements in the administrative law judge's July 13 correspondence that counsel for respondent had acknowledged that he had spoken to the complainant's probation officer, apparently on or around June 25, and that a person indicating that the complainant was their uncle had contacted the administrative law judge by phone the day before hearing.

In the commission's opinion, given his circumstances, the employee's efforts to alert the administrative law judge and the respondent to his inability to be present for the scheduled hearing, while not optimal, were reasonably diligent. The complainant's primary contact with the world outside the correctional institutions was his probation officer, and he reasonably relied upon his probation officer's apparent assurance that he would notify the appropriate entities of his inability to attend the scheduled hearing. It is reasonable to posit that the probation officer, who presumably is not familiar with the equal rights hearing process, once he notified counsel for respondent of the relevant circumstances, on or around June 25, assumed that the appropriate action would be taken. As a back-up, the complainant asked his nephew to contact the administrative law judge. Both counsel for respondent and the administrative law judge were aware that the complainant would not be appearing for the hearing in person or by counsel and knew the reason why, and, as a result, the convening of the hearing and the administrative law judge's July 13 request for an explanation were disingenuous.

The commission concludes as a result that the complainant is entitled to hearing on the merits of his claim.

The administrative law judge's order of August 20, 2004, is set aside, and this matter is remanded to the Equal Rights Division for further proceedings consistent with this decision.

Dated and mailed October 15, 2004
matoucr . rrr : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Craig Matousek
Attorney Michael J. Ganzer

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

uploaded 2004/10/18