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734 Postponement/delays
Petitioner's two discrimination complaints were held in abeyance in light of her request for a stay while they were processed by the federal Equal Employment Opportunity Commission, even though respondent had filed a motion to dismiss the complaints as untimely filed, moot and for failure to state a claim. Petitioner was directed to inform the Personnel Commission, after approximately 5 months, of the status of her federal claim. However, the Commission refused to hold petitioner's related classification appeal in abeyance. Tyus v. DER et al., 97-0078-PC, etc., 1/27/99
Complainant's request to hold 8 cases in abeyance while proceeding on a 9th case was denied, where the issues and parties in the cases were not the same and the primary thrust of discovery would be different. Balele v. WTCSB et al., 97-0097-PC-ER, etc., 12/18/98
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
Complainant's motion to hold the matter in abeyance pending resolution of parallel proceedings in federal court was granted where the two proceedings involved the same parties, facts and causes of action and it was undisputed that judgment on the merits of the federal claim would be conclusive as to the matter before the Commission. Goetz v. DOA & Office of the Columbia County District Attorney, 95-0083-PC-ER, 1/16/98
Complainant’s request for a second hearing opportunity was denied and respondent’s motion to dismiss granted where complainant did not appear on the noticed date for hearing, respondent moved to dismiss a half-hour after the time the hearing was scheduled to commence, complainant appeared at the appointed hour and location on the day after her scheduled hearing and complainant had no excuse for not appearing one day earlier other than describing it as "an unfortunate error" on her part. Complainant failed to show good cause for her failure to appear under §PC 5.03(8)(a), Wis. Adm. Code. Finley v. UW-Madison, 95-0007-PC-ER, 3/26/97
Having decided to proceed pro se, a complainant does not have the right to recess the hearing whenever he decides he wants to consult with counsel. Smith v. DOC, 95-0134, 0169-PC-ER, 11/14/96
Respondent’s motion to dismiss, based upon the existence of a pending claim filed in circuit court under Title VII of the Civil Rights Act of 1964, was denied, distinguishing Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 8/18/87. The Commission granted a stay of the proceeding until after a determination by the other forum as to whether her Title VII claims will be heard in that forum. Respondent failed to explain how it would be irreparably harmed by such a stay. Doro v. UW, 92-0157-PC-ER, 8/15/96
The interests of the public would not be served by permitting a party who has received an adverse proposed decision from a hearing examiner after five days of hearing to re-litigate substantially identical claims in another forum. Complainant's request for an indefinite stay was denied. Stygar v. DHSS, 89-0033-PC-ER, etc., 2/8/95
Complainant's request for a stay of her whistleblower complaint due to having filed a claim in circuit court which included a cause of action alleging violation of her rights under §230.80, et. seq., was denied. Instead, the complaint was dismissed as required by §230.88(2), Stats. Tolley v. Office of the Commissioner of Transportation, 93-0086-PC-ER, 2/22/95
Complainant's hearing postponement request was denied where the parties chose the hearing date five months in advance, respondent objected to the request and although the complainant had recently filed a second complaint, consolidation of the two cases was denied. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)
This FMLA complaint was dismissed for lack of prosecution where complainant and her union representative were aware of the 60-day hearing requirement and agreed to the scheduling of the date for hearing, complainant's subsequent request for postponement was denied, complainant and her representative failed to prepare for hearing in reliance on the filing of a second postponement request which had no prospects for being granted and which was denied at the commencement of the hearing, and the hearing could not be completed on the scheduled date because of delays in commencing the proceeding due to complainant's actions and due to complainant's stated intention to depart from the proceedings prior to their completion. Bush v. UW-Madison, 93-0069-PC-ER, 9/30/93
Complainant's request for a hearing postponement, to seek counsel or to prepare her case herself, was denied when it was made approximately 2 weeks prior to hearing. Complainant had more than 3 months notice of the hearing date and significant time had been committed by respondent and by the Commission to ensure complainant had a full opportunity to litigate her claim. Iheukumere v. UW-Madison, 90-0185-PC-ER, 9/15/93
The examiner properly declined to delay the completion of a hearing in order to permit complainant, who appeared pro se, to subpoena a witness, a physician, where complainant had indicated at the commencement of the hearing that she would not call the physician or any other witnesses, complainant changed her mind after completing her own testimony, complainant failed to make any arrangements with the physician to insure the physician's availability and where the witness stated she was unwilling to appear and did not have the time to appear. Smith v. UW-Madison, 90-0033-PC-ER, 7/30/93
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
The Commission denied the complainant's postponement request where there had already been a significant delay in the hearing and the respondent had consistently raised objection to further postponements. The fact that complainant had moved out of state was not a sufficient basis for postponing a hearing another six and one-half months, where the proceeding had already been postponed approximately one year for the same reason. Adams v. UW-Madison, 90-0051, 0052-PC-ER, 12/29/92
The examiner properly denied complainant's request for a postponement in order to subpoena a witness where the complainant had been informed in writing and before the commencement of the hearing that the witness had moved to California, the postponement request was made after testimony of all scheduled witnesses had been completed and the parties were making arguments regarding the admission of certain exhibits, and the parties had agreed before the last day of hearing as to which witnesses remained to testify and the California witness was not identified at that point. Pugh v. DNR, 86-0059-PC-ER, 9/26/88
The Commission granted respondent's motion for an expedited hearing in order to limit damages where respondent did not contest liability except as to the issue of remedy. The Commission established specific truncated periods for holding a prehearing conference, completing discovery and responding to discovery requests. The hearing was to be held "as soon after the... discovery period as is feasible." Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 10/14/85
The Commission declined to grant what was in effect, a hearing postponement, so that complainant could seek to retain another attorney, where a proposed decision had been issued in the matter, several postponements had already been granted in the case and the complainant knew or should have known that he would be required to present witnesses and exhibits in support of his charge at the hearing. Harris v. DILHR, 81-PC-ER-52, 6/21/83
735 Settlement efforts and agreements (also see 717.5 and 738.4)
A settlement agreement reached in a case before the Commission was subject to release to the public under the open records law where the agreement revealed that: 1) an employment dispute existed that led ultimately to the termination of employment; 2) the employe disputed the grounds for the termination and challenged it before the Commission, claiming the termination was discriminatory; 3) the employe agreed to resign, not seek future employment with the employer, drop his claims and be provided with a neutral reference; and 4) the parties agreed that a performance evaluation, letter of reprimand and letter of termination would be pulled from the employe's personnel file and held separately. Disclosure of those other documents was not before the court. There was nothing in the settlement agreement that created any reasonable expectation of non-disclosure on the part of the employe. Carter v. Wis. Pers. Comm., 98-CV-2620, Dane County Circuit Court, 1/28/99
Where it was undisputed that the parties reached a settlement agreement on the Friday before the Monday on which the hearing was scheduled to begin, complainant was not permitted to attempt to revive a hearing on the merits after he had changed his mind about settling the case over the weekend and appeared for hearing on Monday wishing to proceed. The settlement reached by the parties was a reasonable attempt to resolve the alleged discriminatory practice and did not appear to be contrary to the policies underlying the FEA. Complainant did not allege the agreement was procured by fraud or bad faith and there had been a meeting of the minds as to all terms of the settlement agreement. Geen v. DHFS, 97-0100-PC-ER, 1/13/99
736 Dismissal (includes failure to respond to 20 day letter)
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
Respondent's motion to dismiss for failure to prosecute was granted, where complainant had previously submitted a written statement that he would not attend the scheduled hearing the following week, which he described as "essentially meaningless," and would not withdraw his complaint of age discrimination relating to the failure to select him for a faculty vacancy. Huff v. UW (Superior), 97-0105-PC-ER, 3/10/99
The 20 day period for responding to a certified letter from the Commission commences on the date of the Commission's letter rather than the day complainant received the certified letter. Complainant knew or should have known that the 20 day filing period commenced with the date of the Commission's letter. Sloan v. DOC, 98-0107-PC-ER, etc., 2/10/99
Complainant's contention that he had been under the care of physicians due to stress caused by his work situation and that he was forced to take "some leave" during the period for responding to a 20 day letter, was an insufficient basis on which to conclude that the stress he experienced prevented him from picking up the certified letter, which he admittedly knew was at the post office waiting for him, or from filing a timely response to the certified letter. Complainant failed to reasonably cooperate with the Commission's attempts to process his discrimination complaints. His FEA claims were dismissed for failure to comply with the 20 day requirement. Sloan v. DOC, 98-0107-PC-ER, etc., 2/10/99
Lack of prosecution issues in regard to public employe safety and health claims and whistleblower claims are analyzed under §PC 2.05(4)(b), Wis. Adm. Code, rather than the 20 day certified letter provision in §111.39(3), Stats. Sloan v. DOC, 98-0107-PC-ER, etc., 2/10/99
Complainant's public employe safety and health and whistleblower claims were dismissed where complainant failed to provide a copy of his suspension letter despite repeated requests. Sloan v. DOC, 98-0107-PC-ER, etc., 2/10/99
Where complainant had been unresponsive to prior letters but answered the Commission's final letter requesting information one day late, the Commission imposed an inference at the investigative stage of complainant's public employe safety and health and whistleblower claims that respondent had no knowledge of the events that served as the basis for his retaliation claims. The net effect of the inference was to issue a "no probable cause" initial determination as to those claims. Sloan v. DOC, 98-0107-PC-ER, etc., 2/10/99
Where complainant had been warned repeatedly about using inappropriate language in his filings and where he had failed to make use of an express opportunity to correct the inappropriate language, his complaint was dismissed due to complainant's failure to maintain an appropriate level of decorum. Benson v. UW (Whitewater), 98-0179-PC-ER, 11/20/98
Dismissal, though an extreme sanction, was appropriate where complainant failed to attend his scheduled deposition and the failure was intentional and in bad faith. Complainant refused to attend the deposition that had been scheduled with relatively short notice although it had been scheduled to take advantage of complainant's presence in Wisconsin to attend another Personnel Commission proceeding. The deposition had been discussed during two separate telephone conferences with the designated hearing examiner and the parties. Complainant also refused to respond to specific questions posed by the designated hearing examiner in a letter to the parties establishing a briefing schedule on respondent's motion to dismiss. Huff v. UW (Stevens Point), 97-0092-PC-ER, 11/18/98
No other sanction short of dismissal adequately addressed complainant's pattern of contumacious behavior. Respondent's motion to dismiss for failure to prosecute was granted where complainant's actions amounted to egregious conduct. Complainant was allowed a great deal of latitude in proceeding with his cases and was given every reasonable opportunity to present his cases, but failed to appear at the fourth day of hearing and failed to provide any medical documentation that he was too ill to have attended the hearing. Complainant's credibility had been severely debilitated and he demonstrated a lack of good faith in his approach to the processing of his cases at the hearing stage. Allen v. DOC, 95-0057-PC-ER, etc., 11/4/98
Dismissal was too severe a sanction for complainant's failure to appear at a conference relating to a Family Medical Leave Act claim. Even though complainant knew of the importance of appearing at the conference and had no good excuse for failing to appear, she telephoned the hearing examiner three hours after the conference to explain her failure to appear and made herself available for a second conference to attempt to resolve the matter informally. Neumaier v. DHFS, 98-0180-PC-ER, 11/4/98
Where complainant consistently and successfully avoided or ignored the Commission's requests for information on January 9, January 27, February 20, May 4 and June 15, regarding the two complaints, consistently ignored the warning given him by the Commission and ignored the notice of sanctions if he failed to answer or to produce requested information, his complaints were dismissed for lack of prosecution. Complainant had submitted various materials to the Commission, including four new cases, during the same period in which he alleges he was unavailable or too busy to respond to the Commission's requests for information. Benson v. UW (Whitewater), 98-0004, 0014-PC-ER, 8/26/98
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
Complainant's complaint was dismissed where neither complainant nor her attorney appeared at hearing. Even if complainant, herself, did not receive notice of the hearing, her attorney did receive proper notice. Any lack of notice to complainant was the direct result of her failure to keep either her attorney or the Commission apprised of her whereabouts, which is complainant's responsibility under §PC 1.03(1), Wis. Adm. Code. Complainant failed to provide any reason for not meeting her responsibility. Thyrion v. DHFS, 96-0081-PC-ER, 7/15/98
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
Complainant failed to timely respond to a 20 day letter issued under §111.39(3), where the certified letter was dated January 12th and his response was not received until February 4th. Complainant's argument that he could only complete his legal research on January 31st, a weekend, was rejected and the complaint was dismissed. Vest v. UW (Green Bay), 97-0042-PC-ER, 3/20/98
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
Complainant's charge was dismissed for lack of prosecution where he did not file his response to a letter issued under §111.39(3) until more than 20 days after it was mailed. Complainant's arguments that his father was suffering from cancer and he had a death in the family were not material. Powell v. DHFS, 97-0147-PC-ER, 1/14/98
Where complainant had been sent three letters, over the course of a three month period, requesting certain information relating to her complaint, had failed to request additional time or provide the requested information even though she had twice indicated, orally, that she would respond, her claims of Fair Employment Act discrimination and retaliation for engaging in whistleblower activities were dismissed. The final letter to the complainant had been sent by certified mail and recited §111.39(3), Stats. Johann v. Office of Milwaukee County District Attorney, 97-0045-PC-ER, 10/9/97
Respondent’s motion to dismiss was granted where only one of complainant’s allegations of discrimination was timely filed and that one allegation was precluded by an earlier ruling on sanctions which barred complainant from presenting evidence that was the subject of respondent’s discovery request, and where it had been nearly 3 years since complainant’s motion to stay proceedings had been granted pending a decision on complainant’s claim in state or federal court but complainant never filed in court. It was not inappropriate to revisit the motion to dismiss which respondent had filed as part of its request for discovery sanctions where, in its ruling on that motion, the Commission declined to dismiss the complaint "at this time" which implied possible reconsideration of the question at a later stage in the proceedings. Germain v. DHSS, 90-0005-PC-ER, 91-0083-PC-ER, 4/11/97
Complainant’s request for a second hearing opportunity was denied and respondent’s motion to dismiss granted where complainant did not appear on the noticed date for hearing, respondent moved to dismiss a half-hour after the time the hearing was scheduled to commence, complainant appeared at the appointed hour and location on the day after her scheduled hearing and complainant had no excuse for not appearing one day earlier other than describing it as "an unfortunate error" on her part. Complainant failed to show good cause for her failure to appear under §PC 5.03(8)(a), Wis. Adm. Code. Finley v. UW-Madison, 95-0007-PC-ER, 3/26/97
Respondent’s motion to dismiss for lack of prosecution was granted where complainant failed to have served on respondent either exhibits or a witness list at any time prior to the hearing. Complainant contended that he understood he could rely on documents already submitted during the course of the investigation without having to satisfy the filing and service requirements of §PC 4.02, Wis. Adm. Code. However, the prehearing conference report explicitly informed the parties of the date for complying with the filing and service requirement. Complainant refused to explain his conclusory statement that there were mitigating circumstances. Smith v. DOC, 95-0134, 0169-PC-ER, 11/14/96
Where the Commission received a written response from complainant's attorney on the last day of the 20 day period for responding to a certified letter, the dismissal penalty provided by §111.39(3), Stats., was inapplicable even though the reply failed to provide the information sought by the Commission and even though counsel unilaterally gave himself a 30 day extension for providing the information. Jackson v. DOC, 94-0115-PC-ER, 3/7/96
The purpose behind §111.39(3), Stats., is to provide authority to dismiss claims where a failure to respond is deemed, under the prescribed set of circumstances, as sufficient indication that the complainant does not wish to go forward with the litigation. Jackson v. DOC, 94-0115-PC-ER, 3/7/96
Complainant's failure to respond to the Commission's letter which provided him an opportunity to set forth any disagreement he may have had with respondent's answer, either within the period provided by the initial letter or pursuant to subsequent extensions, was not a basis for dismissal of the complaint. Respondent's motion to dismiss was denied. However, the investigator was directed not to give any consideration to any subsequent response that might be filed by complainant. Berg v. UW-Eau Claire, 94-0154-PC-ER, 3/31/95
Petition for rehearing was denied with respect to a decision to dismiss for lack of prosecution. The cases had been dismissed when complainant filed his response to a certified letter from the Commission after the specified deadline and had not provided dates for scheduling a prehearing conference for more than 16 months, despite several written requests. Additional information offered by the complainant as to his circumstances and his efforts to retain counsel were an insufficient basis for granting the petition. The cases included claims under the whistleblower law and the FEA. Behnke v. UW-Madison, 89-0135-PC-ER, etc., 8/18/94 (Ruling on petition for rehearing)
Where complainant had been informed that his complaint would be dismissed unless, within 20 days, he 1) indicated he wished to pursue the matter and 2) provided dates for scheduling a prehearing conference, and where his response was not received until one day after it was due and did not provide any dates for scheduling the conference, it was dismissed. The Commission had waited for over 16 months for complainant to provide a date for a prehearing conference. Behnke v. UW-Madison, 89-0135-PC-ER, etc., 7/7/94; rehearing denied, 8/18/94
Receipt of response from complainant on 20th day after mailing of request for information was a timely response. Date of mailing was established by postmark on "Receipt for Certified Mail" where that date was inconsistent with date of letter requesting information. Dutter v. DNR, 93-0148-PC-ER, 2/3/94
This FMLA complaint was dismissed for lack of prosecution where complainant and her union representative were aware of the 60-day hearing requirement and agreed to the scheduling of the date for hearing, complainant's subsequent request for postponement was denied, complainant and her representative failed to prepare for hearing in reliance on the filing of a second postponement request which had no prospects for being granted and which was denied at the commencement of the hearing, and the hearing could not be completed on the scheduled date because of delays in commencing the proceeding due to complainant's actions and due to complainant's stated intention to depart from the proceedings prior to their completion. Bush v. UW-Madison, 93-0069-PC-ER, 9/30/93
In ruling on a motion to dismiss for failure of prosecution, dismissal is discretionary once it has been determined that there has been an egregious failure to comply with an order and there is no showing of a clear and justifiable excuse. Respondent's motion was denied even though a number of deadlines had been missed without a showing of cause or excuse where the cases were essentially in the status of awaiting Commission investigation so it could not be said that the conduct of complainants' counsel caused any processing delays and there was no showing of prejudice to respondents. Harden et al. v. DRL & DER, 90-0092-PC-ER, etc., 12/17/92
The 20 day period for responding to a certified letter under §111.39(3) is not tolled by a fear of retaliation that might ensue. Allison v. Wis. Lottery, 90-0158-PC-ER, 7/11/91
Where the complainant's response to the Commission's certified letter was received 21 days after the date the Commission mailed its letter, the complaint was dismissed for lack of prosecution. King v. DHSS, 88-0007-PC-ER, 5/29/91
Complaint was dismissed for lack of prosecution where complainant left during the hearing after having disagreed with the examiner's decision to admit an exhibit over the complainant's objection and after having been advised that, by leaving, complainant was waiving her right to proceed with the matter. Acharya v. DOA, 88-0197-PC-ER, 10/3/89
The Commission is not required to actually serve a complainant with notice before a complaint can be dismissed for lack of prosecution. The 20 day time period commences on the date the letter is sent rather than on the date of receipt by the complainant. Block v. UW-Madison Extension, 88-0052-PC-ER, 7/14/89
Complaint was dismissed where complainant telephoned the Commission on the 21st day after a certified letter was sent to her and filed a response with the Commission on the 22nd day. Billingsley v. DOR, 87-0132-PC-ER, 7/13/88
The 20 day time period for responding to a certified letter commences when the letter is sent to the person's last known address rather than when the letter is received by that person. The complainant's petition for rehearing, which arose from the Commission's decision to dismiss the complaint for lack of prosecution, was denied. Jackson v. DHSS, 87-0149-PC-ER, 3/10/88
Complainant's case was properly dismissed on December 3rd for lack of prosecution where the Commission never received a response to an October 6th letter requesting certain additional information and the Commission's November 9th certified letter to complainant was returned unclaimed and, as a consequence, complainant failed to respond within the 20 day statutory time period. Petition for rehearing was denied. Moss v. DNR, 87-0028-PC-ER, 1/13/88
Complaint was dismissed for failure to respond within the 20 day period provided by statute where complainant did not respond until six days after the end of the period. Complainant argued that she was unaware the 20 day period included all days rather than just work days. Wells-Patterson v. Sec. of State, 83-0049-PC-ER, 5/3/84
736.5 Withdrawal of claim
Where complainant asserted that her failure to submit a notarized version of her complaint of discrimination was due to circumstances beyond her control, i.e. her psychiatric situation, complainant's petition for rehearing was granted and the order dismissing her case, because she had failed to respond to correspondence stating that her failure to respond would be construed as an indication that she did not wish to pursue the matter, was withdrawn. Siewert v. DOT, 98-0220-PC-ER, 3/12/99
Complainant's request to withdraw her complaints was denied where the request was received after the examiner had issued a proposed decision and order and after the Commission had denied the complainant's request for an indefinite stay. It was apparent that the complainant was forum-shopping. Stygar v. DHSS, 89-0033-PC-ER, etc., 2/21/95
The complainant was ordered to provide a copy of the settlement agreement so that the Commission could properly exercise its discretion in determining what will eliminate the discrimination alleged in her complaint because the Commission has the power to proceed against the employer even where parties to the complaint have withdrawn. The review also allows the Commission to consider whether the agreement contravenes public policy. Vande Zande v. UW-Extension, 89-0119-PC-ER, 9/30/93
Pursuant to §PC 1.11, Wis. Adm. Code, the Commission has the authority to exercise its discretion to grant or deny a request for voluntary dismissal. It was appropriate for the Commission to grant voluntary dismissal of certain claims after a hearing but before the issuance of a proposed decision and order. Respondent's petition for rehearing in regard to the Commission's order of dismissal was denied. Ames v. UW-Milwaukee, 86-0123, 0124-PC-ER, 6/7/88
738.1 Generally
Where complainant asserted that her failure to submit a notarized version of her complaint of discrimination was due to circumstances beyond her control, i.e. her psychiatric situation, complainant's petition for rehearing was granted and the order dismissing her case, because she had failed to respond to correspondence stating that her failure to respond would be construed as an indication that she did not wish to pursue the matter, was withdrawn. Siewert v. DOT, 98-0220-PC-ER, 3/12/99
Complainant’s request for a second hearing opportunity was denied and respondent’s motion to dismiss granted where complainant did not appear on the noticed date for hearing, respondent moved to dismiss a half-hour after the time the hearing was scheduled to commence, complainant appeared at the appointed hour and location on the day after her scheduled hearing and complainant had no excuse for not appearing one day earlier other than describing it as "an unfortunate error" on her part. Complainant failed to show good cause for hear failure to appear under §PC 5.03(8)(a), Wis. Adm. Code. Finley v. UW-Madison, 95-0007-PC-ER, 3/26/97
The Commission lacks the authority, under either the Fair Employment Act or the whistleblower law, to enforce the terms of settlement agreements. Where complainant’s charge was clearly focused on the terms of, and the enforcement of, a settlement agreement reached in three previously filed complaints which had been dismissed pursuant to the settlement agreement, the respondent’s motion to dismiss was granted. The Commission also lacked the authority to reopen the previously closed cases, citing Haule v. UW, 85-0166-PC-ER, 8/26/87. Jordan v. DNR, 96-0078-PC-ER, 1/30/97
The Commission denied complainant's request to reopen the hearing for further evidence because she had a full opportunity to offer evidence of her allegations of discrimination at the hearing but did not make use of the opportunity provided her. Smith v. UW-Madison, 90-0033-PC-ER, 7/30/93
The Commission lacks authority to toll, due to mental illness, the limitation on the time period for filing a petition for rehearing. DePagter v. UW-Madison, 93-0003-PC-ER, 7/22/93
The complainant's petition for rehearing was denied where the Commission had affidavits of mailing reflecting that the complainant's Initial Determination and dismissal order were mailed to his address even though he alleged he did not receive them. The Commission is not required to establish service through the use of certified mail. Stewart v. DOR, 92-0062-PC-ER, 3/10/93
A misunderstanding by a party as to the scope of proceedings is not a sufficient basis upon which to grant a petition for rehearing. Beaverson v. DOT, 88-0109-PC-ER, 11/19/90; affirmed by Dane County Circuit Court, Wis. DOT v. Wis. Pers. Comm., 90-CV-4982, 6/4/91; affirmed by Court of Appeals, 169 Wis. 2d 629, 486 N.W.2d 545, 6/4/92; reversed on other grounds by Supreme Court, 176 Wis. 2d 731, 500 N.W.2d 664, 6/9/93
The Department of Employment Relations was a "person aggrieved" under §227.49(1), Stats., for the purpose of filing a petition for rehearing of the Commission's legal conclusions regarding the family leave/medical leave law where those legal conclusions directly caused injury to DER's interests in the bargaining and administration of the state's leave benefit provisions and where DER's interests were recognized by the family leave and medical leave act. Lawless v. UW-Madison, 90-0023-PC-ER, 6/1/90; precedential value qualified, 1/11/91
DER's petition for rehearing was granted where the Commission's implicit conclusion in its previous decision that the leave granted by the respondent for the birth of an employe's natural child was no more restrictive than the leave available under §103.10(3)(b)1., Stats., constituted a material error of law or material error of mixed fact and law. Lawless v. UW-Madison, 90-0023-PC-ER, 6/1/90; precedential value qualified, 1/11/91
Petition was denied where the complainant failed to point to any evidence of record which would show that the Commission's factual conclusion was erroneous or to any reason why complainant did not make a record or did not have an opportunity to make a record to sustain his position with respect to the factual dispute. Morkin v. UW-Madison, 85-0137-PC-ER, 12/29/88; affirmed by Dane County Circuit Court, Morkin v. Wis. Pers. Comm., 89-CV-0423, 9/27/89
Where, in its December 3rd Order, the Commission had properly concluded that the complainant did not wish to prosecute his claim, there was neither a material error of factor of law, nor did appellant allege the discovery of new evidence, and the petition for rehearing was denied. Jones v. UW-System, 87-0102-PC, 1/14/88
Complainant's case was properly dismissed on December 3rd for lack of prosecution where the Commission never received a response to an October 6th letter requesting certain additional information and the Commission's November 9th certified letter to complainant was returned unclaimed and, as a consequence, complainant failed to respond within the 20 day statutory time period. Petition for rehearing was denied. Moss v. DNR, 87-0028-PC-ER, 1/13/88
Where complainant had conducted substantial prehearing discovery and had devoted much of probable cause hearing to presentation of evidence intended to contradict or impeach respondent's evidence, the Commission declined to permit complainant to reopen or augment the record after the issuance of a proposed decision. Complainant’s request was premised on the argument that she was surprised by the probable cause standard applied in the proposed decision. Boyle v. DHSS, 84-0090, 0195-PC-ER, 9/22/87, modified 10/27/87
738.4 Reopen where allegation of failure to fulfill settlement agreement
Complainant's request to reinstate his original charge of discrimination over a year after the charge was dismissed at the complainant's written request, was denied. The complainant's request for enforcement of a settlement agreement was also denied. Haule v. UW-Milwaukee, 85-0166-PC-ER, 8/26/87
The Commission dismissed complainant's petition to reopen 5 cases which had been dismissed two years earlier. Complainant contended the respondents had breached the terms of the settlement agreements that served as the basis for the dismissal orders and sought a form of damages for the breach. The Commission found it lacked the authority to invoke its remedial authority and award the requested relief because there had been no finding of discrimination. However, the complainant was permitted to file a new complaint of discrimination arising out of respondent's conduct after the 1985 settlement agreement where complainant alleged that the employment references provided by respondents constituted discrimination. Rogers v. DOA, 81-PC-ER-111, 82-PC-ER-31, 134, 135, Rogers v. DOA and Ethics Board, 83-0076-PC-ER, Rogers v. DOA and Ethics Board, 87-0010-PC-ER, 6/11/87
The Commission lacks the authority to enforce a settlement agreement entered into in two Fair Employment cases. Janowski & Conrady v. DER, 86-0125, 0126-PC, 10/29/86
The Commission denied complainant's petition to reopen filed fifteen months after the complaint was ordered dismissed based upon a settlement agreement, and held that a petition to reopen was not one of the two procedures available for enforcing an order of the Commission provided in §111.39, Stats. Complainant contended that respondent had failed to comply with the terms of the agreement. Alwin v. DHSS, 83-0122-PC-ER, 7/12/85
Where nine months after a complaint of discrimination had been dismissed on the basis of a settlement agreement the complainant petitioned to vacate the dismissal and to reopen the case, the Commission held that it lacked such authority, citing State ex rel. Farrell v. Schubert, 52 Wis. 2d 351, 358, 190 N.W. 2d 529 (1971), and noting that there was at least a reasonable doubt as to the existence of such authority, and that the complainant had the option of seeking enforcement of the stipulation pursuant to §111.36(3)(d), Stats. Elder v. DHSS, 79-PC-ER-89, 3/19/82
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.