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511.01 Jurisdiction
Section 227.42(1)(d), Stats., provides authority for state agencies, such as the Personnel Commission, to develop appropriate summary disposition procedures, where the disposition does not require the resolution
of any disputes of material fact, unless such summary procedures are otherwise precluded by statute. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98
Because there was a dispute between the parties as to whether the respondent had taken the steps necessary to effectuate the termination of appellant's employment during her probationary period, respondent's motion to dismiss for lack of subject matter jurisdiction had to be reviewed in the context of a motion for summary judgment. Morschauser v. DOC, 98-0175-PC, 3/10/99
Even if the signature on the letter terminating appellant's employment was not the warden's and even if the warden was not aware the termination letter had been given to the appellant until more than 6 months after her date of hire, the termination letter hand-delivered to the appellant during her probationary period constituted the requisite dismissal notice under §ER-MRS 13.08(2), Wis. Adm. Code., because it was undisputed that the warden had directed that the termination of appellant's employment proceed unless information came up at the intent to terminate meeting that would substantially affect the termination decision and no such information was disclosed at the meeting. The appeal was dismissed for lack of subject matter jurisdiction. Morschauser v. DOC, 98-0175-PC, 3/10/99
Issues of subject matter jurisdiction, which include timeliness objections under §230.44(3), Stats., can be raised at any time and cannot be waived. ACE et al. v. DHSS et al., 92-0238-PC, 3/29/93
A request which does not, as a matter of law, satisfy the statutory criteria for hearing contained in §227.42, Stats., constitutes a defect of subject matter jurisdiction which is not waivable. ACE et al. v. DHSS et al., 92-0238-PC, 3/29/93
Objections to subject matter jurisdiction may be raised at any time. Because the time limit for filing an appeal is considered jurisdictional in nature, the respondent could renew its timeliness objection even though it had previously been rejected. Kelling v. DHSS, 87-0047-PC, 3/12/91
Respondent was not barred from reasserting its motion to dismiss the complaint as untimely filed where in a brief filed on the first motion to dismiss, respondents effectively relied on the effective date of the decision and reserved the issue as to the actual date of notification, the second motion raised the date of notification issue and both motions were filed well before any petition for judicial review. Ames v. UW-Milwaukee, 85-0113-PC-ER, 9/17/86
511.02 No factual hearing necessary -- issues of law
The Commission's consideration of matters beyond those plead in the complaint does not preclude the Commission from granting a motion for failure to state a claim. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98
Appellant was put on notice that a motion to dismiss was pending due to his failure to appear at the scheduled hearing and he was given more than a fair opportunity to explain, in writing, his absence. Appellant failed to explain his absence by the established deadline. The Commission was not required to give him a separate hearing on whether he had good cause for missing the hearing. Oriedo v. Wis. Pers. Comm., et al., Dane County Circuit Court, 98 CV 0260, 12/11/98
Even if the signature on the letter terminating appellant's employment was not the warden's and even if the warden was not aware the termination letter had been given to the appellant until more than 6 months after her date of hire, the termination letter hand-delivered to the appellant during her probationary period constituted the requisite dismissal notice under §ER-MRS 13.08(2), Wis. Adm. Code., because it was undisputed that the warden had directed that the termination of appellant's employment proceed unless information came up at the intent to terminate meeting that would substantially affect the termination decision and no such information was disclosed at the meeting. The appeal was dismissed for lack of subject matter jurisdiction. Morschauser v. DOC, 98-0175-PC, 3/10/99
Dismissal (or default judgment) for a party's first failure to appear at a prehearing conference is appropriate only where sufficiently egregious circumstances exist. Balele v. DOR, 98-0002-PC-ER, 2/24/99
The failure of respondent's attorney to inform complainant of respondent's request to postpone the prehearing conference was not a sufficiently egregious circumstance to justify granting default judgment. Balele v. DOR, 98-0002-PC-ER, 2/24/99
Failure to dispute pleadings did not automatically entitle complainant to a judgment by default. Balele v. DOR, 98-0002-PC-ER, 2/24/99
Judicial appellate procedure can not fairly be applied to a de novo administrative hearing. Complainant's motion for a "judgment on admitted claim" was rejected. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Respondent's motion to dismiss appellant's appeal for failure to state a claim was denied where appellant had been demoted in lieu of layoff, he declined respondent's offer of restoration as unreasonable, and he perceived, as a result of respondent's restoration letter, that he could forfeit any further restoration rights due to his refusal and where there was a difference of opinion between the parties as to whether the restoration offer was reasonable under §Pers 22.10(3), Wis. Adm. Code. Sundling v. UW, 93-0049-PC, 11/23/93
A matter appealed to the Commission can be dismissed for failure to state a claim if it appears to a certainty that no relief can be granted under any set of facts that appellant could prove in support of his allegations. ACE et al. v. DHSS et al., 92-0238-PC, 1/12/93
If persons could intervene in proceedings with respect to which they did not have a community of interest, without regard to the 300 day statute of limitations, the statute of limitations would be rendered meaningless. Schroeder v. DHSS & DER, 85-0036-PC-ER, 11/12/86
Motion for summary judgment was ruled on where there were no material issues of fact in dispute. Southwick v. DHSS, 85-0151-PC, 8/6/86
511.03 Factual hearing necessary – questions of fact
In a motion challenging the sufficiency of the evidence, made at the close of the presentations of the respondent's case and for the purpose of determining whether the respondent met its burden of establishing just cause, the standard to be applied is the same standard applicable to non-jury trials as described in Household Utilities, Inc. v. Andrews Co., 71 Wis 2d 17 (1976). McBeath v. DHSS, 82-119-PC, 7/7/83
In considering a motion to dismiss raised at the close of appellant’s case, the motion was, in effect, a request to issue a judgment against the appellant on the grounds that appellant failed to present sufficient evidence to shift the burden of persuasion to respondents, the Commission should consider only the proof which was offered by appellant at the time he rested his case. The motion should not be granted unless the Commission is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion was made that there is not credible evidence to sustain a finding in favor of that party, citing Beacon Bowl v. Wis. Elec. Power Co., 176 Wis. 2d 740, 501 N.W.2d 788 (1993). Sutton v. DOC & DMRS, 96-0155-PC, 6/4/97
511.08 Motion for summary judgment
Section 227.42(1)(d), Stats., provides authority for state agencies, such as the Personnel Commission, to develop appropriate summary disposition procedures, where the disposition does not require the resolution of any disputes of material fact, unless such summary procedures are otherwise precluded by statute. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98
Because there was a dispute between the parties as to whether the respondent had taken the steps necessary to effectuate the termination of appellant's employment during her probationary period, respondent's motion to dismiss for lack of subject matter jurisdiction had to be reviewed in the context of a motion for summary judgment. Morschauser v. DOC, 98-0175-PC, 3/10/99
Where respondent's motion for summary judgment was filed 3 days after complainant's motion for judgment on the pleadings but did not mention complainant's motion, and where respondent did not submit a brief relating to complainant's motion pursuant to a schedule established by the Commission, complainant still was not entitled to default judgment because the motion for summary judgment and the motion for judgment on the pleadings were competing motions. Oriedo v. DOC, 98-0124-PC-ER, 2/2/99
While summary judgment should only be granted in clear cases, the mere assertion of a factual dispute will not defeat an otherwise proper motion for summary judgment. Randby et al. v. DER, 94-0465-PC, etc., 10/16/95
A party is not restricted to the eight month time limit set forth in §802.08(1), Stats., for filing a motion for summary judgment. Stroede v. DER, 94-0403-PC, 8/17/95
Although the appellants had not responded to the motion for summary judgment, the Commission examined the papers respondent submitted in support of the motion to ascertain whether a grant of summary judgment would be appropriate. Swim & Wilkinson v. DER, 92-0576, 0613-PC, 5/15/95
Although the Wisconsin Administrative Procedure Act does not provide explicitly for a summary judgment procedure, if it can be determined that there are no disputed issues of material fact, the Commission can issue a decision without an evidentiary hearing in what amounts functionally to a summary judgment proceeding. The Commission went on to apply the summary judgment methodology set forth in In re Cherokee Park Plat, 113 Wis. 2d 1212, 116, 334 N.W.2d 580 (Ct. App. 1983). Balele v. UW-Madison, 91-0002-PC-ER, 6/11/92
Appellant's motion was granted in an appeal of an examination where in a previous interim order, the Commission held that the invalidity of the subject examination was deemed admitted by operation of §804.11, Stats. However, the motion was not granted as to companion equal rights proceeding because the underlying interim order specifically limited its application to the appeal and the issue in the equal rights case extended beyond the examination. Doyle v. DNR & DMRS, 86-0192-PC, 87-0007-PC-ER, 11/3/88
Summary judgment is appropriate only when there is no genuine issue as to all material facts. Thompson v. DMRS & DNR, 87-0204-PC, 6/29/88
Motion for summary judgment was denied, where appellant failed to establish she was entitled to summary judgment as a matter of law. Southwick v. DHSS, 85-0151-PC, 8/6/86
511.20 Motion to dismiss for lack of prosecution (see also 515.2)
Respondent’s motion to dismiss for lack of prosecution was granted where the only notice that was provided with respect to complainant’s failure to appear at the scheduled hearing was 1) a message from complainant’s wife left early in the morning on the day of hearing on the answering machine of the personnel manager at respondent’s institution and 2) a message at the office of respondent’s attorney after he had left for the hearing. Although complainant contended his absence was due to an "ulcerative colitis flare-up," he failed to submit any documentation. The hearing had previously been postponed, one day before it had been scheduled to commence, due to the death of complainant’s mother. The fact that the prehearing conference had been postponed twice at respondent’s request was of little significance. Coffey v. DHSS, 95-0076-PC-ER, 7/16/97
Respondent’s motion to dismiss for failure to prosecute was granted where immediately prior to opening statements at the scheduled hearing date, appellant advised the hearing examiner that she could not proceed. Complainant had left a telephone message for the hearing examiner two weeks prior to the hearing date asking to reschedule the hearing, the examiner had written the appellant and explained the procedure for requesting a continuance and one week before the hearing the appellant had again telephoned the examiner and stated she had not received the letter and the examiner had denied the continuance at that time. Appellant’s only statement as to the reason for her request for a continuance was that a meeting she was to have with a staff person for the Division of Vocational Rehabilitation had been delayed until one day after the date of the hearing. Mueller v. DOC, 97-0010-PC, 6/19/97
Respondent's motion to dismiss for lack of prosecution was granted where appellant was provided repeated opportunities and directives to respond to respondents' draft settlement agreement and where appellant had also been granted two delays in the scheduled hearing date. Appellant's conduct was egregious and appellant provided no adequate excuse for the failure to respond to the draft settlement agreement or to clear written directives from the examiner. Witt v. DOT & DER, 93-0093-PC, 11/14/95
Respondent's motion to dismiss an appeal from a discharge for lack of prosecution was granted where there had been a two year delay since appellant requested a postponement for health reasons, appellant never provided medical documentation for the request, appellant's counsel was unable to locate the appellant, respondent had the burden of proof and respondent stated that the delay had prejudiced its ability to preserve evidence and produce witnesses including two who were no longer employed by respondent. Hanson v. DHSS, 92-0765-PC, 8/4/95
The failure of appellant to respond to a request from the Commission for a status report and his failure to actively pursue his appeal over a period of several months would not constitute "bad faith or egregious conduct" so as to justify dismissal of the appeal if appellant's asserted excuse, i.e., side effects of a prescription drug, was as he represented. This representation held to constitute a waiver of the privilege relating to disclosure of medical information and respondent was provided an opportunity to examine the information. Gabay v. DMRS & DOC, 90-0140-PC, 10/1/92
511.50 Motion to sequester
Where subsequent to a sequestration order, several of respondent's witnesses, in the presence of each other, were asked questions regarding the case by respondent's counsel, the hearing examiner properly exercised her discretion by permitting appellant's counsel to question the witnesses about the communications and to adjust the weight of their testimony accordingly. Hogoboom v. Wis. Pers. Comm., Dane County Circuit Court, 81CV5669, 4/23/84
A witness who was also identified by respondent as an "assistant to counsel" was exempt from the appellant's sequestration request. Young v. DP, 81-7-PC, 8/26/81
511.80 Timing
Where respondent's motion for summary judgment was filed 3 days after complainant's motion for judgment on the pleadings but did not mention complainant's motion, and where respondent did not submit a brief relating to complainant's motion pursuant to a schedule established by the Commission, complainant still was not entitled to default judgment because the motion for summary judgment and the motion for judgment on the pleadings were competing motions. Oriedo v. DOC, 98-0124-PC-ER, 2/2/99
By waiting until the first day of hearing, respondent waived its right to raise, as an issue, whether the failure of appellants to appeal the decisions on prior reclassification requests operated as a bar to their appeals requesting classification at a certain level, where the alleged bar was in the nature of an affirmative defense which may be waived. Fulk et al. v. DHSS & DER, 95-0004-PC, etc., 4/4/96
511.90 Withdrawal of motion
Respondent was not permitted to withdraw its motion to dismiss for lack of subject matter jurisdiction after the motion had been heard and a proposed decision issued, absent a stipulation by the parties. Pfeifer v DILHR, 86-0149-PC-ER, 86-0201-PC, 12/17/87
512.01(1) Power to adopt
Commission rule PC 1.10(4), Wis. Admin. Code (1980) requiring state agencies to permit employe parties and their representatives to prepare for Commission proceedings and to interview witnesses and parties during regular work hours without loss of pay was held to be null and void as being beyond the Commission's authority to promulgate. DER et al. v. Wis. Pers. Comm., Dane County Circuit Court, 80-CV-4433, 12/9/82
512.03 Filing of briefs
Respondent’s motion to dismiss based on appellant’s failure to adhere to the briefing schedule was denied where the brief was served on respondent on the final day of the briefing period but did not reach the Commission until the following work day. Mueller v. DOT & DER, 93-0109-PC, 2/27/97
Respondent’s request that the Commission not consider appellant’s reply brief, which was due 10 days after respondent’s brief, or on June 6th, but was actually filed on June 17th, was rejected where it appeared that appellant incorrectly understood his reply brief was due 20 rather than 10 days after the respondent’s brief and there were no difficulties caused by the delay. Gunderson v. DER, 95-0095-PC, 8/5/96
513 Timing (including postponement/acceleration) of proceedings
The Commission refused to hold petitioner's classification appeal in abeyance, even though the Commission granted petitioner's request to hold two companion discrimination complaints in abeyance while they were processed by the federal Equal Employment Opportunity Commission. It had been nearly 4 years since the effective date claimed by petitioner in her classification appeal and the federal proceedings would probably not dispose of the claims underlying the appeal. Tyus v. DER et al., 97-0078-PC, etc., 1/27/99
The hearing examiner did not err in denying complainant's request for postponement of the hearing by providing respondent an opportunity to respond to complainant's suggestion that the hearing be postponed until some time the following year. It is the presiding official's responsibility to give each side an opportunity to reply to issues raised. Oriedo v. DPI, 96-0124-PC-ER, 1/14/98; affirmed by Dane County Circuit Court, Oriedo v. Wis. Pers. Comm. et al., 98-CV-0260, 12/11/98
Indefinite postponement was granted where proceeding with administrative hearing had the potential to compromise appellant's Fifth Amendment protections in related criminal proceeding, and where there was specific evidence of agency bad faith or malicious government tactics on the part of respondent. Considerations of harm to the public interest by a postponement were outweighed by the erosion of appellant's constitutional rights that would result if the proceeding was not stayed, and by the judicial findings of respondent's misconduct in connection with the criminal proceeding. Gibas v. DOJ, 92-0247-PC, 9/10/93 (ruling by examiner)
Petitioner's request for an indefinite stay of proceedings in order to pursue his case in federal court was denied where petitioner had not yet filed a federal action, respondent opposed the request and respondent had the burden of proof as to one of the two cases before the Commission. The Commission modified petitioner's request and granted him a stay until the earlier of September 1 or 30 days from the service of any federal court proceeding, at which time the request for an indefinite stay was to be reconsidered. Hodorowicz v. WGC, 91-0078-PC, 91-0177-PC-ER, 4/23/93
Appellant's request to stay his Commission proceeding to pursue claims in another forum was denied where two out of three scheduled days of hearing already had been completed. Stoner v. DATCP, 92-0041-PC, 1/27/93
In an appeal and complaint arising from a discharge decision, the Commission declined to direct the decision of the hearing examiner be the final decision of the Commission where the cases had already been treated on an expedited basis, the parties had agreed to hearing dates prior to the effective date of the discharge and effective relief of back pay would be available to the petitioner in the event she would be successful with either claim. Tews v. PSC, 89-0150-PC, 89-0141-PC-ER, 12/14/89
In an appeal of a decision denying the appellant the opportunity to continue in the examination process for a vacant position, the Commission granted the appellant's request that the hearing process be accelerated so that a decision could be issued before the vacancy was filled, found that the prospect of losing an opportunity for any meaningful remedy generated an "emergency" as that term is used in §227.44, Stats., and designated a hearing examiner to issue a final decision pursuant to §227.46(3)(a), Stats. Nash v. DNR & DMRS, 88-0117-PC, 10/5/88
Respondent's request to schedule the hearing five months after the prehearing conference was denied where the appellant objected to the delay. Despite the existence of various logistical problems not of respondent's own making, the Commission scheduled the hearing for a date approximately two and one-half months after the prehearing conference so that it could be heard in a timely fashion. Young v. DP, 81-7-PC, 8/26/81
Respondent's motion to dismiss for lack of prosecution was denied where the hearing had been delayed over 4 years at the request of the complainant who suffered from both obsessive-compulsive disorder and depression, nothing in the record suggested that these conditions were not relatively constant over the 4 year period, and complainant's psychiatrist stated that proceeding to hearing could generate suicidal behavior. Complainant was granted an indefinite postponement but was directed to submit, within 5 months, a physician's opinion as to whether the complainant could safely appear at a hearing. Wermuth v. DATCP, 82-PC-ER-47, 6/24/87
The Commission denied the appellant's request for a continuance and dismissed the appeal for lack of prosecution where appellant failed to submit any exhibits or additional names of witnesses, failed to contact opposing counsel to request a continuance as advised by the hearing examiner and failed to appear on the scheduled date of hearing. Allen v. DNR & DP, 83-0045-PC, 8/17/83
Appellant's request for continuance was denied and respondents' motion to dismiss granted where the case had been postponed previously, where appellant failed to submit exhibits, where the Commission was advised that appellant's representative was ill but evidence showed the representative worked a regular work day at his place of employment on the scheduled date of the hearing and there was no showing that he was, in fact, ill. Shultis v. DHSS & DP, 81-79-PC, 3/17/83
Where the original appeals were of downward reallocations and were scheduled for hearing when the appellants submitted letters indicating that they did not wish "to pursue the issue at the hearing," but later indicated that they wished to have the appeals held in abeyance until after their positions had been audited as a result of an impending survey, and the respondent objected to this request, the Commission ordered the appeals dismissed, since it was clear that the appellants did not want to proceed with the issue generated by the original reallocations and any subsequent reallocations should be handled as new appeals. Forslund et al. v. DHSS & DP, 79-182, 193, 194-PC, 4/l/81
514 Location of hearing
Complainant's request to move the hearing location from a correctional institution to a city hall was denied, without prejudice, where complainant failed to show that inmates would testify more truthfully if the hearing was held off institution grounds. Complainant contended the inmates would not freely testify in a case against prison management if the hearing would be conducted in the prison administration building adjacent to the inmate resident dormitories or cells. Egan v. DOC, 96-0111-PC-ER, 3/11/98
The examiner's decision to hold the hearing on the campus of the University of Wisconsin-Platteville was not an abuse of discretion despite complainant's contentions that the location was an inherently non-neutral site and that witnesses would be subject to intimidation because of having to testify in front of respondent's management where respondent had stipulated to the sequestration of witnesses, the rules of sequestration would not be any different if the hearing had been held elsewhere, virtually all of the witnesses were UW-Platteville employes, it would be a significant burden for the witnesses to have to appear elsewhere and where depositions had been conducted successfully at UW-Platteville. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
In resolving a dispute between parties as to the appropriate site for the hearing, the Commission selected a neutral site that was accessible to both parties in order to avoid even a possible appearance of unfairness, and directed the hearing examiner to conduct the hearing in a manner that would avoid, to the extent reasonably possible, the interruption of the witnesses' teaching schedules. Andritzky v. UW-Milwaukee, 88-0137-PC-ER, 12/23/91
515.2 For lack of prosecution
Dismissal (or default judgment) for a party's first failure to appear at a prehearing conference is appropriate only where sufficiently egregious circumstances exist. Balele v. DOR, 98-0002-PC-ER, 2/24/99
The fact that complainant may not have claimed, opened or read the correspondence from the Commission does not absolve him from his responsibilities to pursue his case. Benson v. UW (Whitewater), 98-0004, 0014-PC-ER, 8/26/98
Respondent's motion to dismiss for failure to prosecute was granted in April of 1998 with respect to a complaint filed in December of 1994, where even though complainant had been incarcerated since June of 1997, he did nothing to process his complaint during the prior six months. While incarcerated, complainant did not advise the Commission of his circumstances or address or make any attempt to keep his complaint alive. Tetzner v. SPD, 94-0182-PC-ER, 4/29/98
The complaint was dismissed due to complainant's failure to appear at the hearing. Complainant failed to exchange any exhibits or a witness list in advance of hearing and did not provide advance notice that he would not appear. Complainant's request for postponement of the hearing, filed one week before the hearing was scheduled to commence, had been denied. Oriedo v. DPI, 96-0124-PC-ER, 1/14/98; affirmed by Dane County Circuit Court, Oriedo v. Wis. Pers. Comm. et al., 98-CV-0260, 12/11/98
Respondent’s motion to dismiss for lack of prosecution was granted where the only notice that was provided with respect to complainant’s failure to appear at the scheduled hearing was 1) a message from complainant’s wife left early in the morning on the day of hearing on the answering machine of the personnel manager at respondent’s institution and 2) a message at the office of respondent’s attorney after he had left for the hearing. Although complainant contended his absence was due to an "ulcerative colitis flare-up," he failed to submit any documentation. The hearing had previously been postponed, one day before it had been scheduled to commence, due to the death of complainant’s mother. The fact that the prehearing conference had been postponed twice at respondent’s request was of little significance. Coffey v. DHSS, 95-0076-PC-ER, 7/16/97
Respondent’s motion to dismiss for failure to prosecute was granted where immediately prior to opening statements at the scheduled hearing date, appellant advised the hearing examiner that she could not proceed. Complainant had left a telephone message for the hearing examiner two weeks prior to the hearing date asking to reschedule the hearing, the examiner had written the appellant and explained the procedure for requesting a continuance and one week before the hearing the appellant had again telephoned the examiner and stated she had not received the letter and the examiner had denied the continuance at that time. Appellant’s only statement as to the reason for her request for a continuance was that a meeting she was to have with a staff person for the Division of Vocational Rehabilitation had been delayed until one day after the date of the hearing. Mueller v. DOC, 97-0010-PC, 6/19/97
Whether or not the appellant received the notice of hearing contained in the prehearing conference report, he had at least actual notice of the hearing and waived any lack of formal notice by failing to come forward with his claim of lack of notice until after the final decision had been mailed. Appellant's petition for rehearing arising from the Commission's decision to dismiss his appeal for lack of prosecution for failure to appear at the hearing was denied. Mayer v. DHSS & DER, 95-0002-PC, 1/16/96
Respondent's motion to dismiss for lack of prosecution was granted where appellant was provided repeated opportunities and directives to respond to respondents' draft settlement agreement and where appellant had also been granted two delays in the scheduled hearing date. Appellant's conduct was egregious and appellant provided no adequate excuse for the failure to respond to the draft settlement agreement or to clear written directives from the examiner. Witt v. DOT & DER, 93-0093-PC, 11/14/95
Respondent's motion to dismiss an appeal from a discharge for lack of prosecution was granted where there had been a two year delay since appellant requested a postponement for health reasons, appellant never provided medical documentation for the request, appellant's counsel was unable to locate the appellant, respondent had the burden of proof and respondent stated that the delay had prejudiced its ability to preserve evidence and produce witnesses including two who were no longer employed by respondent. Hanson v. DHSS, 92-0765-PC, 8/4/95
An appeal was dismissed where appellant failed to attend three prehearing conferences. The Commission had made special arrangements through the affirmative action office of the agency where appellant worked to have a sign language interpreter present at the second and third conferences. Appellant's failure to attend was found to have been inexcusable. Ross v. DER, 94-0412-PC, 2/6/95
The failure of appellant to respond to a request from the Commission for a status report and his failure to actively pursue his appeal over a period of several months would not constitute "bad faith or egregious conduct" so as to justify dismissal of the appeal if appellant's asserted excuse, i.e., side effects of a prescription drug, was as he represented. This representation held to constituted a waiver of the privilege relating to disclosure of medical information and respondent was provided an opportunity to examine the information. Gabay v. DMRS & DOC, 90-0140-PC, 10/1/92
At least three factors may be weighed when considering dismissal for lack of prosecution: the duration of the delay, the reason for the delay and any prejudicial effect on the adverse party. Wermuth v. DATCP, 82-PC-ER-47, 1/31/89
Respondent's renewed motion to dismiss was denied despite a delay of five and one-half years since the complainant first obtained a postponement for medical reasons where during that period the complainant had received treatment for her medical condition, the most recent available information was that the complainant could not safely appear at a hearing and the respondent had not made any allegation that its ability to offer a defense to the complainant's claim of discrimination had been prejudiced by the delay in the hearing. Wermuth v. DATCP, 82-PC-ER-47, 1/31/89
There was insufficient basis for dismissing an appeal where appellant had agreed to provide a telephone number where he could be reached on the date and time the prehearing conference was to be reconvened and where, four days prior to the date on which the conference was to be reconvened, the complainant mailed the requested information to the Commission but it did not reach the Commission prior to the time the conference was to be reconvened. La Plante v. DMRS, 87-0168-PC, 3/10/88
Appeal was dismissed where appellant notified the Commission, in writing, that he would not be attending the scheduled hearing, the examiner then wrote the appellant and interpreted appellant's letter as a withdrawal which would result in dismissal of the case and the appellant then wrote that his prior memorandum was not a withdrawal but he expected the Commission to "pursue this claim vigorously to a successful end." The Commission has no authority to prosecute a case on behalf of a party. Jones v. UW-System, 87-0102-PC, 12/3/87, petition for rehearing denied, 1/14/88
Respondent's motion to dismiss for lack of prosecution was denied where the hearing had been delayed over 4 years at the request of the complainant who suffered from both obsessive-compulsive disorder and depression, nothing in the record suggested that these conditions were not relatively constant over the 4 year period, and complainant's psychiatrist stated that proceeding to hearing could generate suicidal behavior. Complainant was granted an indefinite postponement but was directed to submit, within 5 months, a physician's opinion as to whether the complainant could safely appear at a hearing. Wermuth v. DATCP, 82-PC-ER-47, 6/24/87
Appellant failed to show good cause for his failure to appear at the scheduled hearing and the appeal was dismissed. Appellant failed to contact the Commission to advise that he would not be appearing and failed to file copies of exhibits prior to the scheduled hearing. Appellant contended that he could not leave his work site to attend the hearing because of office emergencies. Salazar v. DHSS, 84-0038-PC, 6/27/84
Appellant's request for continuance was denied and respondents' motion to dismiss granted where the case had been postponed previously, where appellant failed to submit exhibits, where the Commission was advised that appellant's representative was ill but evidence showed the representative worked a regular work day at his place of employment on the scheduled date of the hearing and there was no showing that he was, in fact, ill. Shultis v. DHSS & DP, 81-79-PC, 3/17/83
A petition for rehearing was denied where the appeal originally had been dismissed for lack of jurisdiction without reaching the respondent's motion to dismiss for failure of prosecution, because said motion would have to be granted even if the Commission were to determine that it had jurisdiction. Jansen et al. v. DOT & DP, 78-170-PC, etc., 10/4/82
Where the appellant failed to appear at a hearing following an initial postponement at his request, and failed to contact the Commission with an explanation until after a motion to dismiss was filed, and then stated that his car had been stuck on the morning in question, but failed to explain his failure to have contacted the Commission that date, the Commission concluded that he had failed to prosecute his appeal, and it was dismissed. Thom v. DOR, 81-335-PC, 3/8/82
Where the hearing was twice postponed at the appellant's request, and six days before the third hearing date the Commission contacted the appellant regarding the status of certain witnesses and the appellant indicated that he had decided to retain counsel and requested a third postponement, the Commission held that the appellant had failed to prosecute his appeal and ordered it dismissed. Beer v. DHSS, 79-198-PC, 7/17/80
The matter was dismissed for failure to prosecute where appellant employe failed to appear at the scheduled hearing and his representative, who did appear, was unprepared to proceed with all issues. Sasso v. UW-Whitewater, 79-285-PC, 6/27/80
Motion to dismiss for lack of prosecution was denied as to five of seven appellants whose union representation was withdrawn subsequent to the prehearing conference and who were not present for the hearing of the group appeal. The exercise of what may have been the representative's privilege to decline to represent some of the appellants did not change their status and the only thing waived by the absence of the five was their right to add to evidence otherwise presented. Krewson et al. v. DP, 78-23-PC, 1/30/79
515.5 Withdrawal
Appellant's request to withdraw her appeal after the promulgation of proposed decision on her reclassification appeal was denied. Appellant had indicated she intended to submit a new reclassification request based on changes in job responsibilities. To permit withdrawal would encourage the use of the appeal and hearing process as a test run with the option of withdrawal prior to a decision on the merits if the case appeared to be heading towards a negative conclusion. Klein v. UW & DER, 91-0208-PC, 2/8/93
Appellant's petition for rehearing was granted where the order dismissing appellant's appeal at her request was issued under a misapprehension of appellant's intent and was premised on a material error of fact. Although the appellant had previously indicated she had wished to withdraw her appeal, a letter from the Commission to appellant to confirm this intent was improperly addressed, appellant changed her mind before she received the Commission's dismissal order and, at that time, wrote the Commission to continue her appeal. Wipperfurth v. DER, 92-0135-PC, 11/13/92
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.