HEATHER L HINKFORTH, Complainant
BRICKLAYERS & ALLIED CRAFTSMEN DISTRICT COUNCIL, 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 February 23, 2004
hinkfhe . rsd : 164 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
In her petition for commission review the complainant makes the following argument:
"As a matter of special circumstance and without objection from the Respondent the case was dismissed and sent for Appeal. This case was not held for hearing in front of the Administrative Law Judge ("ALJ"). The respondent failed to submit any form of objection to the issues as stated by this Complainant within the request to dismiss the action."
The complainant is apparently suggesting that, by failing to file an objection to her request to stay the proceedings before the administrative law judge and proceed directly to a review by the commission, the respondent agreed to this request. She further intimates that the administrative law judge granted her motion. The complainant's argument is without merit. The complainant's motion to proceed directly to commission review was not filed until the day before the hearing, and there is nothing in the file to suggest that the respondent would have been amenable to the administrative law judge's granting this request, had he the authority or the inclination to do so. Moreover, the respondent did not have the authority to grant the complainant's motion by failing to object to it -- only the administrative law judge can grant a motion, and the file contains nothing to indicate that the administrative law judge issued a ruling on the complainant's last-minute request. The complainant, therefore, had no reason to assume that her request had been granted by the administrative law judge. Finally, and most importantly, had the administrative law judge been given sufficient time to address the motion, he would have explained to the complainant that the statute and administrative rules do not contain any provision allowing parties to skip the hearing and proceed directly to commission review. The commission reviews the findings and order issued by the administrative law judge. It provides a second level of administrative review. For all these reasons, the complainant was not justified in presuming she could ignore the scheduled hearing without jeopardizing her right to prosecute her case, and her failure to appear at the hearing was a circumstance warranting dismissal of her complaint.
In her petition the complainant states that, because she is proceeding pro se, her allegations are entitled to a liberal construction. She argues that the commission must review this case as a matter of her right to due process. This argument is without merit. The entitlement to liberal construction applies to the allegations in the complaint. The fact that a complainant is proceeding pro se does not, however, entitle her to disregard the hearing. Where a complainant fails without good cause to appear at the hearing, the dismissal of the complaint is required. Wis. Admin. Code § DWD 218.18(4). This applies equally to those parties who are represented by counsel and those who choose to proceed pro se. The dismissal of the complaint is, therefore, affirmed. The complainant's arguments regarding the merits of her case will not be addressed.
Attorney Matthew R. Robbins
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