743 Postponements

The Respondent’s last minute request for a postponement based on the death of its attorney three months earlier was properly denied where the Respondent had never informed the Division it had an attorney and made no attempt to contact the attorney until a week before the hearing. Further, the lack of counsel did not prevent the Respondent from presenting witnesses on its behalf at the hearing. Towns v. Holistic Home and Hospice (LIRC, 02/08/23).

Three weeks before hearing, the lawyer that the Complainant hoped to retain told him he was not going to help him. The ALJ did not abuse discretion by denying the Complainant’s request to postpone the hearing, given that the Complainant had never retained the lawyer, and did not use the three weeks before hearing diligently to prepare for hearing. The ALJ also did not err in denying a postponement for the Complainant’s doctor’s appointment on the day of the hearing. A party requesting a postponement for a medical reason must show to a reasonable degree of medical certainty that he or she is unable to attend because of the medical condition. The Complainant characterized his appointment as a pre-op meeting, and did not provide a medical opinion that he was unable to attend the hearing. Wood v. R & M Freight, Inc. (LIRC, 09/11/15).

The fact that the Complainant requested a postponement of the hearing did not give her good cause for failing to appear at the hearing. The Complainant’s postponement request was unclear. The ALJ made repeated attempts to contact the Complainant before hearing to get more information about the circumstances behind the request but did not hear back from her. The Complainant was notified, by a telephone message from the ALJ, that the request for the postponement was not granted. The fact that the Administrative Law Judge had granted the Respondent’s earlier postponement request did not require that the Complainant’s request be granted. Wennesheimer v. AON Risk Serv. (LIRC, 08/14/12).

An Administrative Law Judge’s failure to respond to a request for postponement of the hearing is tantamount to a denial of the request. Although the best practice would be for the Administrative Law Judge to issue a formal ruling which sets forth his rationale for granting or denying the request, a party who has been given no reason to believe that such a request was granted is expected to appear for the hearing or show good cause for his failure to appear. Cottingham v. McDonald’s (LIRC, 08/25/10).

Where a complaint is dismissed for the Complainant’s failure to appear at hearing, the Administrative Law Judge should discuss his reasons for denying any last-minute request for a postponement that preceded the hearing. In this case, the Complainant alleged a conflict between a scheduled court appearance and the hearing before the Administrative Law Judge. The case was remanded to the Equal Rights Division to determine if the Complainant could establish that he in fact had a court date that conflicted with the Equal Rights proceeding, and if he could demonstrate that he only learned of that conflict shortly before filing the postponement request. Under these circumstances, the Complainant would establish the type of unforeseeable emergency circumstance that would warrant granting a postponement after the ten-day period for requesting postponements set forth in the Department’s administrative rules. Brewer v. Laidlaw Transit Serv. (LIRC, 09/18/07).

The Administrative Law Judge should have postponed the hearing where the Complainant presented a note from his physician which implied that the Complainant’s medical condition would compromise his ability to fully attend, and to participate in, the hearing process. The Administrative Law Judge could have preserved the integrity of the proceedings and recognized the Complainant’s lack of diligence in filing a witness and exhibit list by ruling that the parties would not be permitted to file any additional lists of witnesses or copies of exhibits prior to the rescheduled hearing date. Salinas v. Russ Darrow Group (LIRC, 08/31/07).

When a party has had a sufficient amount of time to make arrangements for legal representation, any failure to obtain such representation will not be grounds for a postponement. Selimi v. Wellpoint (LIRC, 11/29/05).

The Administrative Law Judge did not rule on the Complainant’s request for a postponement, which was made five days prior to the hearing. The failure to rule on the motion prior to the hearing was tantamount to a denial of the motion. However, it would have been better practice for the Administrative Law Judge to issue a formal ruling on the motion, setting forth his rationale for granting or denying it. Beasley v. OIC-GM (LIRC, 10/13/04), aff’d sub nom. Beasley v. LIRC (Dane Co. Cir. Ct., 03/10/05).

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).

The Complainant argued that he did not appear at the hearing because he no longer had an attorney. However, there was no indication that the Complainant ever notified the Equal Rights Division of his situation or made a request for a postponement or a continuance of the hearing. His complaint was properly dismissed. Alexander v. Unified Solutions, Inc. (LIRC, 01/31/03).

An Administrative Law Judge improperly denied the Complainant's request to have the hearing postponed where the Complainant specifically advised the Administrative Law Judge that he was unable to attend the hearing because he would be undergoing chemotherapy that week. Mottl v. The Sales Force Companies (LIRC, 06/26/96).

By failing to timely apprise the Department that she was having difficulty in locating her witnesses, and by not appearing at the scheduled hearing, a Complainant essentially waived any right of postponement she might have had based upon the unavailability of witnesses. Gill v. Ryder Bus Co. (LIRC, 01/31/94).

When a Complainant has a sufficient amount of time to make arrangements for legal representation, any failure to obtain such representation will not be grounds for a postponement. The administrative rules do not provide postponements for poor working relationships between parties and their counsel. Moreover, the hearing notice clearly states that the Equal Rights Division normally does not grant postponements because a party wishes to keep looking for an attorney or because their attorney needs more time. Surin v. Toney (LIRC, 06/25/92).

A medical condition, to justify good cause for postponement of the hearing, must be proven by competent evidence and to a reasonable degree of medical certainty. The Complainant in this case failed to produce any competent medical evidence to show that she was unable to continue with the hearing because of her daughter’s medical condition. Surin v. Toney (LIRC, 06/25/92).

The Equal Rights Division's administrative rules provide that requests for postponements shall be filed with the Administrative Law Judge. The rules define “filing” as “the physical receipt of a document at any Division office.” This strongly suggests that requests for postponements must be made in writing. It was not reasonable for an attorney to rely upon an oral representation over the telephone by an unidentified person at the Equal Rights Division that a hearing had been postponed. Phillips v. J.L. Marcus Dept. Stores (LIRC, 02/12/91).

The Complainant, who lived in California, had good cause for his failure to appear at the hearing where he had notified the Administrative Law Judge prior to the hearing that he was required to meet with his probation officer on the date the hearing was scheduled and that he could not leave California without permission to do so by his probation officer. Jones-Browning v. Woodman's (LIRC, 09/27/90).

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 Serv. (LIRC, 05/23/90).

The fact that a party filed a request for a postponement and had not received any response to the request from the Equal Rights Division did not justify the party’s failing to appear at the hearing. Jaskolski v. M & I Data Serv. (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 v. Assoc. Leasing (LIRC, 03/16/90).

The Complainant asserted that his personal financial situation prevented him from having sufficient funds to obtain legal representation and failed to proceed with his case when the Administrative Law Judge denied his request for a postponement. LIRC upheld the dismissal of the case because the Complainant had sufficient time to make arrangements for representation. Webinger v. P.V. Farmer, Inc. (LIRC, 11/29/88).

Where the Complainant was incarcerated at the time he filed his complaint and continued to be incarcerated since that time, and was still incarcerated when the matter was scheduled for hearing and did not anticipate being released until approximately nine months after the scheduled hearing date, his request for a postponement of the hearing was found to be for good cause. Smith v. Park East Hotel (LIRC, 02/20/87).

Where a notice was issued on August 25 for a hearing on December 14, and advised that the parties should immediately notify the department of any problems with that date, and where on December 12 the employer’s attorney orally requested a continuance, which request was denied, there was no abuse of discretion in the examiner’s decision to proceed with the hearing in the absence of the employer or its counsel, who failed to appear at the hearing after the request for a continuance was denied. The denial of the request for the continuance, which was made based on a claimed conflict with another trial, was not inappropriate, and due process does not require providing a further hearing to one who, without justifiable excuse, does not proceed according to the rules. Tomah-Mauston Broad. Co. v. Eklund (Ct. App., Dist. IV, unpublished opinion, 03/25/86).

Where the Complainant was given three months notice of the hearing date, and two months before the hearing her attorney withdrew, it was not error to deny a request for a postponement of the hearing made only two days prior to the scheduled hearing date by the Complainant’s newly retained attorney, given the Complainant’s unexplained neglect for two months prior to the hearing to seek new counsel or to advise the Division of the need for a postponement. Timeliness of a request for a postponement is judged not by the date on which the Complainant retains counsel, but by the date on which the Complainant is given notice of the date of hearing. Vicente v. Med. College of Wis. (LIRC, 04/19/85).

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).

It was proper to dismiss a case which had previously been continued at the Complainant's request where the Complainant’s attorney had been denied another postponement sought one week before the rescheduled date and subsequently failed to proceed at the hearing. Patrick v. Sch. Dist. of Spooner (LIRC, 03/10/83).

It was not an abuse of discretion to refuse a postponement at the Complainant’s request and dismiss her complaint where she refused to proceed without her chosen attorney and there had already been two postponements at her request. Kluss v. LIRC (Wisconsin Higher Ed. Aids Bd.) (Milwaukee Co. Cir. Ct., 07/16/81).

Where the president of an employer was denied a rescheduling of the hearing because he was going to be out of town, it was appropriate to proceed with the hearing in his absence. Guralski v. Standard Container (DILHR, 08/04/76).