765 Failure to appear at hearing

The Complainant's complaint was dismissed after he failed to appear at a virtual no probable cause hearing using the WebEx platform. The Complainant asserted that he was unable to attend the hearing because the Division failed to have a reasonable working system. The commission rejected the Complainant's arguments, noting that the Complainant was able to appear at an earlier pre-hearing conference using the same technology that he contends did not work for the hearing. The commission noted that the hearing administrative law judge took numerous precautions to ensure that the Complainant would be able to appear at the virtual hearing and questioned the credibility of the Complainant's assertion that he was unable to appear at the hearing. Furthermore, the commission emphasized that the Complainant had many options to notify the administrative law judge that he was unable to connect to the hearing and failed to do so in a timely manner. Tadisch v. PMI Ent. Group d/b/a Brown County Memorial Complex (LIRC, 11/11/21).

The Complainant’s assertion that the presence of security guards in the hearing room made him feel unsafe based upon his race, a matter which he did not mention to the administrative law judge when requesting to appear by telephone, did not provide the Complainant with good cause for failing to appear at the hearing. Young v. Goodwill Indus. of S.E. Wisconsin (LIRC, 07/09/20).

A party who requests unsuccessfully that an administrative law judge recuse himself from the case must nonetheless proceed with the hearing, then raise the failure to recuse as grounds for appeal in the event of an unfavorable decision. The administrative law judge’s denial of a request to recuse does not constitute good cause for failing to appear. Young v. Accurate Full Service Vehicle Ctr. (LIRC, 05/30/19).

The Complainant contended she had good cause for missing the hearing because she never received the hearing notice. However, even if the Complainant did not receive the hearing notice, she received actual notice of the hearing in the form of a scheduling order which specified the hearing date and location, and should have made some effort prior to the hearing to confirm the particulars of where and when the hearing would be held. Dillard v. Charter Commc'ns, LLC (LIRC, 05/18/18).

The Complainant believed the administrative law judge was biased against him and asked her to recuse herself from his case, but the administrative law judge declined to do so. The Complainant’s remedy under the circumstances was to appear at the hearing and preserve his objections on appeal. By failing to appear at the hearing the Complainant waived his opportunity to present his case. Ghanem v. Univ. of Wis.-Madison Off. of Admin. Legal Servs. (LIRC, 01/30/18).

There is a rebuttable presumption that properly mailed notices are received. Where there was proper mailing of a notice of hearing and the item was not returned by the post office, the Complainant failed to rebut the presumption because her assertion of non-receipt was not plausible. The attorney who made the assertion on her behalf did not have first-hand knowledge of whether his client received the notice. Burright v. Ashley Furniture Indus., Inc. (LIRC, 07/22/15).

A party’s failure to notify the ERD of a new mailing address is not fatal to a claim that he had good cause for missing the hearing because he did not receive the notice, provided the party can show that he took reasonable steps to update his address with the United States Postal Service and there is no other reason to believe that he was aware of or should have been aware of the hearing date. Ford v. Chicago Grill (LIRC, 02/27/15).

The Complainant missed the hearing because she recorded the incorrect hearing time on her calendar. The Commission rejected her claim that the error was the Respondent’s fault because of the distress its alleged discrimination had caused her. Failure to pay sufficient attention to notices from the ERD is not “excusable neglect,” but the result of carelessness or inattentiveness. Murphy v. Wal-Mart Stores, Inc. (LIRC, 08/12/14).

The Commission continues to take the view that a Complainant who disagrees with rulings of an ALJ is required to proceed with the hearing in order to preserve his right to review of those rulings on appeal, and that if the Complainant instead refuses to proceed with the hearing due to his objections to the rulings, and his complaint is dismissed as a result, he is deemed to have waived his objections to those rulings. This rule is important to the integrity of the system in place for litigation, appeal and review of Equal Rights cases, because it secures the non-appealability of interlocutory decisions of ALJs. Mullins v. Wauwatosa Sch. Dist. (LIRC, 05/17/13).

A party’s lack of a car cannot, standing alone, always be considered good cause for failure to appear at a hearing. It must be determined whether the party who did not have a car had time to make alternative transportation arrangements. Also, the party must make efforts to contact the Equal Rights Division to advise it of problems that might create the need for a postponement of the hearing. In this case, the Complainant had almost three months to look into making arrangements to get to the hearing. She never said anything to the Equal Rights Division about needing a postponement or a change in the hearing location. The Complainant failed to establish good cause for failing to appear at the hearing and her case was appropriately dismissed. Clemons v. Senior Helpers (LIRC, 11/20/12).

The Complainant’s failure to pay sufficient attention to the hearing notice from the Equal Rights Division, which changed the hearing date from one date to another date, is a clear example of carelessness or inattentiveness of the kind that may not be considered “excusable neglect.” The Complainant did not show good cause for his failure to appear at the hearing. Allen v. Miles Kimball Co. (LIRC, 12/28/12).

The Respondent’s motion to dismiss was properly granted where the Complainant abruptly left the hearing without presenting any evidence. A Complainant bears the burden of proof. The Complainant’s failure to present any evidence establishes as a matter of law that there has been a failure of proof. Robinson v. Schlossmann’s Imports (LIRC, 05/31/12).

A party’s plausible assertion that it did not receive a notice of hearing, and that this was the reason for failing to appear at the hearing, cannot be rejected or resolved without providing an opportunity for hearing. While the circumstances in this case suggest that the Complainant should have received the notices of hearing, his contention that he did not receive any notice of hearing cannot be rejected without allowing an opportunity for hearing on that question. The case was remanded to the Equal Rights Division for a hearing to address whether the Complainant had received notice of the first hearing held in this matter. Hernandez v. Starline Trucking Corp. (LIRC, 02/29/12).

The failure of parties to appear at scheduled hearings before the Equal Rights Division is a significant challenge to calendaring the many cases which the Division is called upon to hear. It is appropriate that ALJs with crowded hearing calendars may seek to clarify the parties’ intentions prior to the day of hearing. It was understandable for the ALJ in this case to seek to clarify whether the Complainant, whose mailing address was in California, intended to appear at the hearing. The ALJ did not demonstrate bias by contacting the Complainant’s daughter, who had been listed as the contact person for the Complainant on the complaint form. The Complainant’s argument that she did not appear at the hearing because the ALJ was not impartial or that the ALJ had predetermined the outcome of the case was rejected. Elizalde v. Teamsters Gen. Local #200 (LIRC, 02/21/12).

A party who requests a new hearing based upon a failure to appear at the original hearing must demonstrate good cause for the failure to appear. Good cause has been defined to mean excusable neglect (i.e., the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances). Alvey v. First Student, Inc. (LIRC, 08/22/11).

The fact that the Respondent also failed to appear at the hearing did not provide a basis for overlooking the Complainant’s failure to appear. The consequences are different when a Respondent fails to appear at a hearing. Section DWD 218.18, Wis. Admin. Code, provides that if the Complainant fails to appear and to proceed the Administrative Law Judge shall dismiss the complaint. The rule further provides that if the Respondent fails to appear at the hearing the hearing shall proceed as scheduled. A Complainant must always show up and put in a case even if a Respondent has not appeared because the Complainant bears the burden of proving that he or she was discriminated against. Parks v. Walnut Grove (LIRC, 03/31/11).

In order to establish good cause for failing to appear at a hearing, a party must show that the failure to appear was either the result of excusable neglect or a reason which, if established by competent evidence, would amount to circumstances beyond the individual’s control or which would otherwise have prevented or made it unreasonable for the party to appear. The failure to appear for the hearing must be explained with a degree of specificity adequate to allow a reasoned assessment by the decision-maker of whether it is probable that good cause for the failure to appear could be established. Ellingsworth v. Humana Ins. (LIRC, 12/30/10).

Section DWD 218.18(4), Wis. Admin. Code, provides that an Administrative Law Judge may reopen a hearing if, within ten days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear. This rule does not mean that a party’s assertions that are submitted more than ten days following the hearing may not be considered. However, once an Administrative Law Judge’s decision has been issued, a party’s written objection to that decision should generally be treated as a petition for LIRC review. Ellingsworth v. Humana Ins. (LIRC, 12/30/10).

The Complainant in this case established good cause for her failure to appear at the hearing. She submitted a discharge summary from a hospital indicating her diagnosis and treatment for a head injury two days prior to the hearing. The Respondent’s argument that this document was hearsay was rejected. Since sec. DWD 218.18(4), Wis. Admin. Code, requires that a party failing to appear at a hearing show good cause “in writing” for the failure to appear, this “writing” will undoubtedly be hearsay. Ellingsworth v. Humana Ins. (LIRC, 12/30/10).

As a general rule, factual assertions as to a person’s reasons for failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests that he or she may be able to demonstrate good cause for failing to appear. Cottingham v. McDonald’s (LIRC, 08/25/10).

A Complainant whose case has been dismissed for failure to appear at a hearing must demonstrate, on appeal, that there was good cause for the failure to appear. Good cause has been defined to mean either that the failure to appear was the result of excusable neglect (i.e., the degree of neglect a reasonable, prudent person might be expected to commit in similar circumstances), or a reason which, if established by competent evidence, would amount to circumstances beyond the individual’s control or which would otherwise have prevented or made it unreasonable for the Complainant to appear. The failure to appear for the hearing must be explained 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. Schwarz v. Gateway Tech. College (LIRC, 04/23/10), aff’d sub nom. Schwarz v. LIRC (Racine Co. Cir. Ct., 08/16/10).

A Complainant who did not appear at the hearing must, in appealing the dismissal of his case, offer an explanation which, if proved, would demonstrate that he had good cause for his failure to appear. Even if the Complainant had presented a postponement request to the Equal Rights Division which the Division failed to address, this circumstance would not establish good cause for his failure to appear at the scheduled hearing. The Complainant had reason to be aware that a postponement request had not been granted in his case and that the Division had not granted his request to appear by telephone rather than in person, yet he failed to appear at the noticed hearing. These were not the actions of a reasonably prudent person. Amos v. McDonald’s (LIRC, 05/25/07).

The Complainant refused to proceed at the hearing because he objected to the Administrative Law Judge’s decision not to postpone the hearing. The complaint was properly dismissed as a result of the Complainant’s failure to proceed and present evidence in support of the complaint. Jackson v. Transwood, Inc. (LIRC, 04/27/07).

A Complainant whose complaint has been dismissed for failure to appear at the hearing may have the hearing re-opened, provided the Complainant can show good cause in writing for the failure to appear. Good cause is a reason which, if established by competent evidence, would amount to circumstances beyond the individual’s control, or which would otherwise have prevented or made it unreasonable for the Complainant to appear. Kieck v. Mas Graphics (LIRC, 08/28/06).

As a general rule, factual assertions as to grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests that he may be able to demonstrate good cause for failing to appear. Kieck v. Mas Graphics (LIRC, 08/28/06).

The Complainant asserted on appeal that she did not appear for her hearing because she could not find a lawyer who would take her case. While the Complainant may have preferred to have an attorney represent her at the hearing, representation by an attorney is not a matter of right under the Equal Rights Division’s rules. In instances where a party does not appear by counsel or other representative, it is the role of the Administrative Law Judge to see that the party’s case is properly developed. Therefore, the Complainant did not show good cause for her failure to appear at the hearing. Whitt v. Alterra Wynwood of Madison West (LIRC, 07/15/05).

A party who disagrees with rulings rendered by an Administrative Law Judge prior to hearing is required to proceed to hearing, preserving her objections to such rulings on the record for review on appeal. If the Complainant instead refuses to proceed with the hearing due to her objections to the Administrative Law Judge’s rulings, and her complaint is dismissed as a result, the Complainant is deemed to have waived her objections to these rulings. Casetta v. Zales Jewelers (LIRC, 06/14/05).

It interferes with the process established by sec. DWD 218.18(4), Wis. Adm. Code, for an Administrative Law Judge to issue an order of dismissal based upon a Complainant’s failure to appear at a hearing before the ten-day review process referenced in that provision has expired. Wallace v. Laidlaw Transit (LIRC, 02/24/05). In order to establish good cause for failing to appear at a hearing, the non-appearing party must offer an explanation which, if proved, would demonstrate that the failure resulted from excusable neglect, which is the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances. 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).

A Complainant is expected to manage his personal and work life in a manner which will enable him to prepare for, and to attend, a scheduled ERD hearing. Parties are expected to take time off from work to attend scheduled hearings. Wallace v. Laidlaw Transit (LIRC, 02/24/05).

A Complainant whose case was dismissed for failure to appear at a hearing must demonstrate, on appeal, that there was good cause for the failure to appear at the hearing (i.e., that the failure resulted from excusable neglect). This failure to appear must be explained 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. The Complainant’s failure to appear because she looked at the wrong document for the date of hearing did not amount to excusable neglect in this case. Excusable neglect is not synonymous with neglect, carelessness or inattentiveness. Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances. 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 was the result of carelessness or inattentiveness. Martin v. County of Milwaukee (LIRC, 12/17/04).

As a general rule, factual assertions as to grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests that they may be able to demonstrate good cause for failing to appear. Whitlow v. Air Trans Airways (LIRC, 12/13/04).

A party who cannot read English, or who does not read English well, has an obligation to have documents translated. In this case, the Complainant was able to file a complaint, to read or have translated the initial determination, and to take appropriate action to file a timely appeal. She was also able to read or have translated the Administrative Law Judge’s dismissal order, and she filed a timely petition for review. There was no reason to believe that the Complainant was not capable of understanding, or gaining understanding of, the hearing notice, not withstanding her lack of facility with English. Her failure to do so did not provide her with good cause for missing the hearing. Accordingly, the dismissal of her complaint was affirmed. Further, the Labor and Industry Review Commission denied the Complainant’s request that it issue its decision in this matter in Spanish. If the Complainant had difficulty reading the decision of the Commission, it was her obligation to have it translated. Hernandez v. Sara Lee Corp. (LIRC, 05/21/04).

Where a Complainant does not have good cause for failing to appear at the hearing, the dismissal of the complaint is required. This applies equally to those parties who are represented by counsel, and those who choose to proceed pro se. Hinkforth v. Bricklayers & Allied Craftsmen Dist. Council (LIRC, 02/23/04).

The Department’s administrative rules permit an Administrative Law Judge to reopen a hearing upon the request of a party who failed to appear at the initial hearing if the party establishes good cause for failing to appear within 10 days after the date of hearing. Upon concluding that the Respondent had demonstrated good cause for its failure to appear at the first hearing in this matter, the Administrative Law Judge granted its request to reopen, although the ALJ limited the Respondent’s presentation of evidence to that which could have been presented at the initial hearing. This was an appropriate exercise of discretion. Jackson v. Mansur Trucking (Ct. App., Dist. IV, summary affirmance, 12/18/03).

As a general rule, factual assertions as to the grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing where the Complainant suggests that she may be able to demonstrate good cause for failing to appear. Hopson v. Family Dollar Stores (LIRC, 10/30/03).

In order to establish good cause for failure to appear at the hearing, a party must demonstrate that the failure to appear 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. The Complainant here did not establish a single explanation why she failed to appear until one hour after the notice of hearing indicated the hearing was scheduled to commence. The most reasonable inference is that the Complainant failed to carefully read the notice of hearing. This is not sufficient to show good cause. Malone v. Froedtert Mem'l Lutheran Hosp. (LIRC, 07/30/03).

An Administrative Law Judge may not dismiss a complaint as a sanction for a Complainant’s abandonment of a hearing when the record contains some evidence upon which factual findings could be made. Rather than dismissing the complaint, the appropriate course under these circumstances would be to treat the Complainant as having rested at the point at which he walks out or otherwise abandons the hearing, to afford the Respondent an opportunity to present its case if it chooses to do so, and to issue a decision based on the adequacy of the evidence presented. Clemons v. Opportunities Industrialization Ctr. of Greater Milwaukee (LIRC, 02/14/03).

The Complainant asserted that he failed to appear at the hearing because he no longer had an attorney. However, there was no indication as to what efforts, if any, he had made to secure another attorney. Furthermore, there was no indication that the Complainant ever notified the Equal Rights Division of his situation and made a request for a postponement or a continuance of the hearing. Therefore, it was appropriate to dismiss the Complainant’s complaint when he failed to appear at the hearing. Alexander v. Unified Solutions, Inc (LIRC, 01/31/03).

The Department’s rules require dismissal of the case if a Complainant fails to appear at a hearing in person or by a representative. In this case, the Complainant did not appear at the hearing, but her attorney did. While the Complainant’s failure to come to the hearing did not require dismissal of her complaint, her failure to put in any evidence in support of her case was a situation warranting dismissal. Sweet v. M & H Restaurants (LIRC, 11/29/02).

Where the Complainant’s attorney appeared at the hearing, but the Complainant did not because her daughter was ill, the Complainant’s attorney should have requested a continuance. Further, the Administrative Law Judge should have ascertained whether the attorney intended to proceed on the Complainant’s behalf without the Complainant’s presence before dismissing the case. The Complainant was not legally obligated to be present at the hearing, and her attorney could have attempted to make the case based on other evidence available to her. Sweet v. M & H Rest. (LIRC, 11/29/02).

The Complainant alleged that he had not appeared at the hearing because he had not received the notice of hearing. There is a rebuttable presumption that mail which is properly addressed is delivered and received. The notice of hearing in the Division’s case file showed that the Division had the correct address for the Complainant, and that the Division mailed a notice of the hearing to him. No notice of hearing was returned to the Division as undeliverable by the post office. Therefore, the Complainant did not rebut the presumption that he received notice of the hearing, and the dismissal of his case was affirmed. Vang v. Donaldson Co. (LIRC, 08/29/02).

The Respondent’s failure to appear at the hearing constituted excusable neglect where the Respondent had been sold to a new entity approximately five weeks before the hearing and where the company that had been monitoring the outstanding claims against the Respondent failed to provide the new entity with adequate information regarding the status of outstanding claims against the Respondent. Zollicoffer v. Ryder Student Transp. Serv. (LIRC, 08/25/00).

The Department’s rule regarding failure to appear at hearing requires more than a mere assertion of good cause; the non-appearing party must explain his 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. In this case, the Complainant simply said that he had been “ill and unable to attend.” This was insufficient to show good cause for his failure to attend the hearing. Mason v. ASI Technologies (LIRC, 04/17/98).

Where the Complainant merely stated that she had an extreme personal emergency which necessitated her being out of the area during the time of the scheduled hearing, she failed to establish good cause for her failure to appear at the hearing. The Complainant objected to revealing the nature of her emergency; however, the Administrative Law Judge was justified in requiring the Complainant to provide satisfactory evidence which established that she was faced with an unavoidable emergency.Kikkert v. Trinity Evangelical Lutheran Church (LIRC, 09/27/96).

It was not a violation of due process for the Administrative Law Judge to proceed with a hearing and to make a decision based solely on the Complainant’s testimony, where the Respondent failed to appear at the hearing. Kaczynski v. Whitlock Auto Supply (LIRC, 07/17/96), aff’d sub nom. WRS Corp. v. LIRC (Dane Co Cir. Ct., 04/08/97).

Parties are expected to take time off from work in order to attend scheduled hearings. Further, financial constraints do not constitute good cause for a failure to appear at hearing. Accordingly, an Administrative Law Judge appropriately dismissed a case where the Complainant failed to appear at the hearing after requesting, and being denied, a postponement on the ground that she was hospitalized as part of a medical study. Kupferschmidt v. Milwaukee Bd. of Sch. Dir. (LIRC, 05/30/96).

A complaint was properly dismissed where the Complainant failed to appear at a pre-hearing conference. Peterson v. Harvest Life Ins. Co. (LIRC, 04/19/96).

Where a complaint is dismissed for failure of the Complainant to appear at the hearing, the Administrative Law Judge should discuss his or her reasons for denying any last-minute request for a postponement that preceded the hearing. Peterson v. Marquette Univ. (LIRC, 07/11/94).

The Complainant established good cause for failing to appear at the hearing where she and her attorney arrived at the hearing one hour late because the attorney had inadvertently recorded the incorrect time for the hearing on her calendar. This was a simple and unintentional mistake made on the part of the Complainant's attorney. Gibbs v. LIRC (Waukesha Co. Cir. Ct., 04/07/94).

A Complainant failed to establish that her failure to appear at the hearing was for good cause. The Complainant asserted that she could not travel 500 miles to attend the hearing and that she could not leave her mother and her four children home alone; however, the Complainant failed to provide requested medical certification or an affidavit establishing that she could not leave her mother’s care. Fullilove v. First Choice Fitness Ctr. (LIRC, 02/18/94).

A new hearing may be ordered if the party who fails to appear shows good cause for that failure. Good cause is a reason which, if established by competent evidence, would amount to circumstances beyond the individual’s control or which otherwise prevented or made it unreasonable for him to appear. Being scheduled for work does not demonstrate such good cause. Parties are expected to take time off from work to attend scheduled hearings. Talaska v. C.A.T.S. Nationwide (LIRC, 02/08/94).

There is no per se requirement that a Complainant actually be present at a hearing, only a requirement that evidence be presented on the Complainant’s behalf. The administrative rule providing for dismissal of complaints based on “failure to appear” cannot be relied upon where the Complainant appears at a hearing but leaves without putting in any evidence. Nevertheless, a summary dismissal order is appropriate because the failure to present any evidence establishes as a matter of law that there has been a failure of proof. Jackson v. City of Milwaukee (LIRC, 10/28/93).

Financial constraints do not provide the Complainant with good cause for failing to appear at the hearing. Russ v. Milwaukee Area Tech. College (LIRC, 08/06/93).

It was not reasonable for the Complainant to have concluded that the hearing date had been changed based upon a conversation with the clerk of courts in the county where the hearing was scheduled to be held. The Complainant had a duty to contact the Equal Rights Division about his scheduled hearing. Backey v. John Deere Horicon Works (LIRC 04/08/93).

The Complainant did not establish good cause for failing to appear at the hearing where he speculated that the notice of hearing may have been lost in the mail. Vogel v. Milwaukee Bd. of Sch. Dir. (LIRC, 02/25/93).

There is no requirement that a Complainant appear in person at a hearing. Ind 88.16(5), Wis. Admin. Code, only requires dismissal if the Complainant fails to appear either in person or by a representative. However, a case was properly dismissed, even though the Complainant's attorney appeared at the hearing, where the Complainant failed to put in evidence in support of her case. Cooper v. Janlin Plastics (LIRC, 06/05/92).

The Complainant established good cause for failing to appear at the hearing where he presented evidence to the Labor and Industry Review Commission that he had been incarcerated on the day of the hearing from early morning until the middle of the afternoon. The Complainant's hearing had been scheduled to begin at 9:00 a.m. Young v. Pinkerton Sec. Serv. (LIRC, 10/15/91).

The Complainant did not establish good cause for failing to appear at his hearing when he indicated that he did not receive the notice of hearing because he had been arrested and was confined at a federal prison in Pennsylvania. This case is no different from one in which a party moved without notifying the Equal Rights Division of the party’s new address and then failed to appear at the hearing (or to notify the Equal Rights Division of inability to attend) because of failure to receive the notice of hearing. A party has an obligation to keep the Equal Rights Division informed of his address. A party cannot be allowed to create “good cause” for failure to appear at a hearing by moving without notifying the Equal Rights Division of his new address and thus avoiding the notice of hearing. Moses v. Northshore Healthcare Ctr. (LIRC, 06/06/91).

Where the complaint identified the Respondent’s Wisconsin address, and where the Respondent did not directly request the Equal Rights Division to serve notices on its corporate offices in Dallas, Texas, the Respondent could not justify failing to appear at the hearing on the ground that it did not receive the notice of hearing at its corporate office in Texas. The Respondent conceded that the notice of hearing had been received at its Wisconsin location. Orwen-Richter v. Royal Int’l Optical (LIRC, 05/03/91).

The Complainant had good cause for failing to appear at the hearing where he was summoned for jury duty on the day of the hearing and where he mailed a copy of the jury summons to the Administrative Law Judge and to an Equal Rights Division Bureau Director prior to the date of the hearing. Hahn v. Waupaca County Dep’t of Human Resources (LIRC, 02/14/91).

LIRC will remand a case to the Administrative Law Judge to take testimony on the Respondent’s reasons for failing to appear at the hearing, rather than making that determination itself on the basis of an affidavit from the Respondent. Moore v. Holst Excavating, Inc. (LIRC, 02/12/91).

The Commission was not persuaded that the Complainant failed to receive notice of the hearing because: (1) the Department’s file indicated that the Complainant was mailed a notice of hearing which was not returned as undeliverable, (2) the Respondent mailed a copy of its list of witnesses and exhibits to the Complainant, and (3) based on its having previously reviewed several of the Complainant’s discrimination cases, LIRC took administrative notice of the fact that the Complainant was aware of the significance of the Respondent's witness and exhibit list. Young v. Leach (LIRC, 12/18/90).

Where a complaint is dismissed for failure to appear at the hearing, the Administrative Law Judge must discuss in his order of dismissal his reasons for denying any last-minute request for postponement. A functionally equivalent situation is presented when a last-minute request for postponement is made and denied and the Complainant, while initially present at the hearing, refuses to present any evidence and leaves. Jackson v. City of Milwaukee Pub. Library (LIRC, 12/14/90).

The complaint was dismissed where the Complainant failed to appear at the hearing. The Complainant had three months' notice that the law firm which had been representing him would no longer do so and there was no indication that he did anything to obtain other counsel during that period. Kranz v. Marc’s Big Boy (LIRC, 08/08/90).

The Complainant did not have good cause for failing to appear at the hearing. The Complainant claimed that she did not receive a Notice of Hearing. However, even assuming that the Complainant did not get actual notice, she did receive copies of the Respondent’s answer and its witness and exhibit list, which put her on notice that her hearing was scheduled to take place very soon. The Complainant’s failure to contact the Department to find out the date of the hearing or to request a postponement was unreasonable. Feaster v. Dillingham, N.A., Inc. (LIRC, 06/29/90).

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 response from the 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. Associates Leasing (LIRC, 03/16/90).

After a hearing was continued based on representations by the Complainant’s attorney that the Complainant was suffering from a back injury and was physically incapable of participating in the hearing, the Administrative Law Judge learned that the Complainant’s representation that her doctor had advised her not to attend the hearing was untrue. Further, the Complainant failed to provide medical documentation that she had been physically unable to attend the hearing. The Complainant’s complaint was, accordingly, dismissed. Ludwig v. Eau Claire County Sheriff's Dep’t (LIRC, 01/31/90).

LIRC ordered the matter remanded for a hearing as to whether the Complainant had good cause for failure to appear at the hearing, where the Complainant asserted in a timely petition for review that her sister's foster child took a call from a woman who stated that the time for the hearing had been changed. Lonetree v. Ho-Chunk Bingo (LIRC, 12/08/89).

The Complainant did not show good cause for failure to appear at the hearing where he contended that he never received notice of the hearing because he had moved to a new address. It was the Complainant’s responsibility to keep the Department informed of his current address. Pechacek v. J. C. Penney (LIRC, 11/10/89).

Neither the Complainant's belief that he was going to get a "conciliation hearing," his having to work on the day of the hearing, nor his inability to find a potential witness's address justified his failure to appear at the hearing. Smith v. Menard (LIRC, 02/24/89).

The Complainant's petition to have his case reopened after it was dismissed for his failure to appear at hearing was denied where 39 days had elapsed after the hearing before the Complainant attempted to contact the Department regarding his non-appearance, and no documentation of the Complainant’s injury or his attorney's illness was received by the Commission. Holt v. Lee (LIRC, 02/24/89).

The Complainant, who claimed in his petition for review that he had been physically unable to be present at the hearing, had telephoned the Equal Rights Division at 8:30 on the morning of the hearing, and did not call back when the call was disconnected before it could be switched to the Legal Bureau Director. Noting that the Complainant lived in Camp Douglas, Wisconsin, and that his claim that he was “physically unable to be present” could just as easily be interpreted as indicating that he had overslept as indicating that there was an emergency, LIRC affirmed the order of the Administrative Law Judge dismissing the complaint based on the failure of the Complainant to appear. Frohmader v. Milwaukee County Dep’t of Social Serv. (LIRC, 09/30/88).

The Complainant did not have good cause for failing to appear at the hearing merely because he thought an “offer of settlement” had settled the matter, where he failed to offer any evidence that he had agreed to accept the settlement offer made by the Respondent or that the Respondent had agreed to accept the settlement offer made by him. Absent an agreement by the parties to settle the matter, the Complainant could not reasonably have concluded that there was no reason to attend the scheduled hearing. Love v. Dr. Su Ryong Her (LIRC, 08/31/88).

The Administrative Law Judge's dismissal of the complaint based on Complainant’s failure to appear at the hearing was affirmed, despite the Complainant’s assertion that he failed to appear because he had not received the notice of hearing. The Complainant’s assertions were inconsistent: he claimed that he had moved to a new address and informed the Department of his new address, and put in a change of address card at the Post Office, but he also asserted that the current tenant of his former address had held his mail containing the notice of hearing until after the hearing date. Other correspondence from the Equal Rights Division was mailed to the former address, and the Complainant did not assert that he failed to receive that. Phillips v. Nat’l Transit Leasing (LIRC, 06/03/88).

A Complainant's failure to appear at hearing was justified where he faced unforeseen difficulties in getting to the hearing from out of state and where he had made every effort to overcome them. Amaya v. Newcap (LIRC, 07/20/83).

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).