DOROTHY L MARTIN, Complainant

COUNTY OF MILWAUKEE, 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 December 17, 2004
martido . rsd : 125 : 9 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

By notice dated July 23, 2004, the parties were advised that the hearing in the above-captioned matter would be held at 9 a.m. on November 9, 2004.

In response to a letter from the complainant in which she indicated a belief that the ERD would subpoena several witnesses for her, the ALJ informed the complainant by letter dated July 29 that she was responsible for subpoenaing the witnesses and advised her what was required of her to ensure that a subpoena is properly served. The ALJ enclosed three subpoena forms for the complainant. The subpoena forms also listed the 9 a.m. November 9 hearing time and date.

The complainant failed to appear for the scheduled hearing.

Wisconsin Administrative Code, section DWD 218.18(4) 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 letter by the ALJ dated November 9, 2004, addressed to the parties (a copy of which is in the case file) indicates that the complainant appeared at the ERD office at about 1 p.m. that day and stated that she had looked at the wrong document (a document on blue paper regarding a 1 p.m. Worker's Compensation matter) and thought the ERD hearing was at 1 p.m. The ALJ states in the letter that the complainant had failed to demonstrate good cause for her failure to appear. The ALJ states that the complainant's failure to appear on time for the ERD hearing because she looked at the time for some event scheduled before the Worker's Compensation Division does not amount to excusable neglect. The ALJ noted that the complainant was sent a notice of hearing on July 23, 2004, that it informed her of the time, date and location of the hearing, that it clearly indicated the hearing was for the complainant's complaint filed with the ERD and that said notice of hearing was sent to the parties on white paper.

Accordingly, on November 11, 2004, the ALJ issued a decision dismissing the complainant's complaint.

In her petition for review the complainant states that she "Looked at the wrong letter and date and time. I have so many court dates and doctors appt. going on. (Plus) I am just getting out of the ICU at Columbia hospital. But that's no excuse. I have to just slow down and make my appointment on time....Will you please hear my case. It was a (honest) mistake."

A non-appearing complainant, in a petition to the commission, 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. Malone v. Froedtert Memorial Lutheran Hospital (LIRC, 07/30/03), citing Mason v. ASI Technologies (LIRC, 04/17/98).

While the complainant asserts that she is "just" getting out of the ICU at Columbia Hospital, she does not state exactly when she left the ICU nor does she explain why this was a factor in her failure to appear for her scheduled hearing. Indeed, the complainant herself indicates that this was no excuse for her failure to appear. Further, the complainant's failure to appear because she looked at the wrong document does not amount to excusable neglect. Excusable neglect is not synonymous with neglect, carelessness or inattentiveness. Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832 (1969). Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances. Id. 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 the result of carelessness or inattentiveness.

cc: Attorney Mary Ann Grimes

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

uploaded 2005/01/04