DUANE CARLTON DEERING JR, Complainant

BEVERLY ENTERPRISES - WISCONSIN INC, Respondent

Following a hearing held on May 14, 2007, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter (amended August 31, 2007) finding that the respondent discriminated against the complainant on the basis of disability in violation of the Wisconsin Fair Employment Act. The respondent did not appear at the hearing. The respondent timely filed a petition for review in which it asserted that its failure to appear at the hearing was the result of "excusable neglect".

The commission has considered the petition and the positions of the parties. Based on its review, for the reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission issues the following:

The decision of the administrative law judge issued in this matter is set aside and this case is remanded to the Equal Rights Division for a hearing, before the same administrative law judge, on the issue of whether or not the respondent had good cause for its failure to appear at the May 14, 2007 hearing.

If, after considering the evidence presented on this issue the administrative law judge decides that the respondent did not have good cause for its failure to appear at the hearing, he shall re-issue his original decision as the final decision in this matter.

If, however, the administrative law judge decides that the respondent did have good cause for its failure to appear at the hearing, he shall conduct a further hearing on the merits to allow the respondent to present its evidence and to permit the complainant to present rebuttal evidence in response to the respondent's case. The administrative law judge shall then issue a new decision based on all of the evidence, including the evidence received at the hearing held on May 14, 2007.

The administrative law judge may, in his discretion, conduct the further hearing on the merits on a provisional basis in conjunction with and at the same time as the hearing on the issue of the respondent's failure to appear at the May 14, 2007 hearing, or he may first hold a hearing on the issue of the respondent's failure to appear at the May 14, 2007 hearing and then schedule and conduct a further hearing on the merits at a later time if he is persuaded that the respondent had good cause for its failure to appear at the hearing.

Dated and mailed June 20, 2008
deeridu . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

BACKGROUND

By letter dated December 16, 2005, the Equal Rights Division notified the respondent that a complaint was received from the complainant, a copy of which was enclosed, alleging that the respondent violated the Wisconsin Fair Employment Law. The Division requested that the respondent respond to the complaint within 45 days. The letter notice was sent to the respondent's address at 300 Race Street, Wisconsin Dells, WI 53965, the address the complainant provided for the respondent in his complaint.

On February 2, 2006, the ERD sent by certified mail a second notice of the complaint to the respondent's 300 Race Street address in Wisconsin Dells because the Division had not received a response to the complaint within 45 days as directed by the December 16, 2005 notice.

Michael S. Holzum, the respondent's Regional Employment/Labor Relations Manager, subsequently filed an answer to the complainant's complaint with the ERD on behalf of the respondent. Holzum submitted the answer on stationery with the respondent's corporate letterhead logo, "beverly healthcare", and the following address and phone number:

W325 S8120 Jericho Road
Mukwonago, Wisconsin 53149
414 430-2328

Holzum identified the respondent as a skilled nursing facility located in Wisconsin Dells, Wisconsin and made assertions refuting the complaint allegations. At the end of his answer to the complaint, Holzum wrote: "Please feel free to contact me at (414) 430-2328 if you have any further questions or require any additional information."

Holzum's subsequent responses to further inquiries by an equal rights officer of the Division were also sent on stationery with the "beverly healthcare" logo and Holzum's Mukwonago address and phone number.

On May 1, 2006, the equal rights officer issued an initial determination finding probable cause to believe the respondent may have violated the Wisconsin Fair Employment Act and a notice certifying the matter to hearing. The respondent's address, 300 Race Street, Wisconsin Dells, Wisconsin appears in the caption of the initial determination. At the bottom of the initial determination the following were listed as "carbon copies":

Complainant
Respondent, Attn: Michael Holzum, Regional Employment/Labor Relations Manager
Erin M. Frieberg, Attorney for Complainant

(Emphasis added.)

On January 5, 2007, the Division issued a notice of hearing to the parties, which set forth April 26, 2005, at 9:00 a.m. in Portage, Wisconsin as the date, time and location of hearing on the complainant's complaint. The respondent's address, 300 Race Street, Wisconsin Dells, Wisconsin appears in the caption of the notice of hearing. At the bottom of the notice of hearing the following were listed as "carbon copies":

Complainant
Respondent, ATTN: MICHAEL S HOLZUM, Director HR
CATHERINE CETRANGOLO, Attorney for Complainant

(Emphasis added.)

Thereafter, as a result of a January 10, 2007 letter request for a hearing location change by complainant's counsel and counsel's subsequent January 19, 2007 letter request for a different hearing date, the ALJ gave notice by letter dated February 8, 2007, addressed to the complainant's counsel and Holzum at his street address in Mukwonago, Wisconsin, that the hearing scheduled for April 26, 2007 in Portage was cancelled and rescheduled for Monday, May 14, 2007, at 9:00 a.m. at the state office building at 201 East Washington Avenue in Madison, Wisconsin.

Apparently, when complainant's counsel made the January 10, 2007 letter request for a hearing location change, counsel sent a copy of this request to Michael Holzum at the respondent's 300 Race Street address in Wisconsin Dells, but it was returned to counsel with the hand written notation "NO SUCH PERSON HERE". Subsequently, by letter sent to Holzum dated January 16, 2007, at his Mukwonago address, counsel wrote: "Please find enclosed a letter mailed to your Wisconsin Dells office regarding the April 26, 2007 hearing, which was returned to sender for some reason. Unless I hear otherwise, I will direct future correspondence to your Mukwonago address, as shown above."

On May 14, 2007, the ALJ held a hearing on the complainant's discrimination complaint, but no one appeared on behalf of the respondent.

On July 23, 2007, the Division issued a NOTICE Of SCHEDULING FOR FILING AND RESPONDING TO PETITION FOR ATTORNEY'S FEES. Included was notice that a decision finding that discrimination has occurred would be issued in the matter, and a copy of the decision as it would appear when issued in final form. The respondent's address, 300 Race Street, Wisconsin Dells, Wisconsin was listed in the caption of the case of the notice and the attached decision. At the bottom of the notice regarding the petition for attorney's fees the following were listed as "carbon copies":

CATHERINE CETRANGOLO, Attorney for Complainant
MICHAEL HOLZUM, for Respondent

On August 23, 2007, the Division issued the ALJ's final decision in the matter. The respondent's address, 300 Race Street, Wisconsin Dells, Wisconsin was listed in the caption of the case in the decision and the cover letter attached to the decision. At the bottom of the cover letter the following were listed as "carbon copies":

Complainant
Respondent
CATHERINE CETRANGOLO, Attorney for Complainant
MICHAEL S HOLZUM DIRECTOR HR, for Respondent

On August 31, 2007, the Division issued the ALJ's amended decision and order. The respondent's address at 300 Race Street in Wisconsin Dells was listed in the caption of the case in the amended decision and the cover letter attached to the decision. The following were listed as "carbon copies" at the bottom of the cover letter:

Complainant
Respondent
CATHERINE CETRANGOLO, Attorney for Complainant
MICHAEL S HOLZUM, Representative of Respondent
 

DISCUSSION

Wis. Admin. Code § DWD 218.18(4) provides that a hearing may be reopened if a party who failed to appear shows good cause in writing for the failure to appear.

Wis. Admin. Code § DWD 218.11(1), provides, in relevant part, that "In any matter which has been certified to hearing following an initial determination of probable cause...the department shall advise the parties and their representatives and attorneys of record in writing by first-class mail, of the specific time, date and place established for the hearing."

On appeal, the respondent asserts that the ERD and the ALJ sent all hearing notices to its human resources administrator's (Holzum's) home address instead of sending notices to the respondent's facility, that Holzum ended his employment with the respondent on January 5, 2007, that Holzum did not forward the notices to the respondent because his wife threw away any material relating to the respondent sent to their home without ever bringing it to Holzum's attention, and therefore the respondent had no notice of the May 14, 2007 hearing.

The respondent asserts that it appears from the January 5, 2007 hearing notice that both the complainant and his counsel were sent the notice, however, only Holzum was sent the hearing notice for the respondent. The respondent asserts that it did not receive any notices from the ERD or the ALJ after the initial determination was served and that the first indication the respondent had that the ALJ had set the matter for hearing was when the ALJ sent the final decision to the respondent's facility.

The respondent argues that the ERD failed to follow Wis. Admin. Code § 218.11(1) with respect to providing notice of the hearing. The respondent argues that the administrative rule requires the Division "to advise the parties and their representatives and attorneys of record in writing", and that the language of 218.11 is mandatory and not discretionary. (Emphasis in original.)

Further, the respondent argues that even if the hearing notice properly could be sent only to Holzum, the undisputed facts are that he quit his employment with the respondent in the middle of the ERD's processing of this matter and "prior to the notice of hearing." The respondent argues that Holzum was unaware that "the Hearing Notice" had been issued, as his wife threw away any material relating to the respondent, and that he likewise did not know that the respondent was not receiving "notices of the hearing".

The commission concludes that the issue of whether or not the respondent had good cause for its failure to appear at the hearing should be resolved at an evidentiary hearing. First of all, while the respondent has asserted that all hearing notices were sent to Holzum, the January 5, 2007 dated hearing notice (which would have been sent in an envelope on which the name of the Department of Workforce Development, Equal Rights Division appeared as the return address) indicates that the Division did send notice of the originally scheduled April 26, 2007 hearing to the respondent's facility in Wisconsin Dells-this is indicated by the "carbon copy" listing, "Respondent, ATTN: MICHAEL S HOLZUM, Director HR" on that notice of hearing-and there is nothing in the case file to indicate that this notice was returned to the department as undeliverable by the Post Office. The mailing of a letter creates a rebuttable presumption that the letter was delivered and received, which shifts to the challenging party the burden of presenting credible evidence of non-receipt. State ex rel. Flores v. State, 183 Wis. 2d 587, 612-613, 516 N.W.2d 362 (1994). Unless the presumption of receipt is overcome by credible evidence of non-receipt, the January 5, 2007 notice should have alerted the respondent to the fact that a hearing had been scheduled that the respondent needed to appear at, and actually caused the respondent to appear for the hearing on April 26, 2007, if it had intended to appear and defend against the complainant's claim and absent prior notice of cancellation of that hearing from someone.

Second, a question exists as to whether or not the respondent had actual notice of the May 14, 2007 hearing despite notice apparently not being sent to its facility. The respondent's claim that it had no notice of the hearing rescheduled for May 14, 2007, rests on its assertion that the hearing notice was sent to Holzum's home and that Holzum did not forward the notice to the respondent because his wife (apparently a Registered Nurse) threw away any material relating to the respondent sent to their home without ever bringing it to Holzum's attention. The correspondence sent to Holzum's home address included the ALJ's February 8, 2007 letter, which would have been sent in an envelope on which the name "Department of Workforce Development, Equal Rights Division" appeared as the return address. This correspondence provided notice that the hearing scheduled for April 26, 2007, in Portage, Wisconsin was cancelled and rescheduled for Monday, May 14, 2007, at 9:00 a.m. at the state office building at 201 East Washington Avenue in Madison, Wisconsin.

In addition, included as what was allegedly thrown away by Holzum's wife was correspondence to establish the new hearing date. Complainant's counsel asserts that she sent a letter (apparently in an envelope on which the name "Boardman Law Firm" appeared) dated January 16, 2007 to Holzum's home address, in which she enclosed a copy of her January 10, 2007 letter request for a hearing location change that was sent to Holzum at the respondent's address in Wisconsin Dells but had been returned with the hand written notation "NO SUCH PERSON HERE".

In view of the credibility issues this matter presents regarding the respondent's failure to appear for the hearing in this matter, the commission has remanded this matter for an evidentiary hearing.

cc:
Attorney Catherine Cetrangolo
Attorney Theresa E. Essig

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