NEIL RAY PATE, Complainant
MUZA METAL PRODUCTS CORP, 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 April 30, 2010
patene . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Pursuant to Attorney Robert Collins' January 2008 request that the scheduled February 28, 2008 hearing on Neil Pate's discrimination complaint be postponed because of Pate's incarceration in a county jail and anticipated prison sentence with an ending date in November 2008, on March 30, 2008, ALJ Allen Lawent issued an Order "To Hold In Abeyance" in the matter. The ALJ's order stated that the case shall be held in abeyance status until November 30, 2008, and that the hearing shall be rescheduled sometime after that date. Attorney Collins, whom ALJ Lawent understood was not representing Pate on his discrimination case but was representing Pate in another matter, was sent a courtesy copy of the March 30 order.
On December 17, 2009, the Equal Rights Division mailed a notice of hearing to the parties which informed them that a hearing on Pate's discrimination complaint would be held at 9 a.m. on February 26, 2010, in Oshkosh, Wisconsin. Pate's notice of hearing was mailed to him at the address listed on his discrimination complaint, 2531 Waukau Avenue in Oshkosh, Wisconsin.
By letter dated January 8, 2010, Attorney Andrew Rossmeissl notified the Division that his law firm had been retained to represent the respondent.
On February 16, 2010, counsel for the respondent mailed copies of the respondent's disclosure of prospective witnesses and exhibits to the ALJ, and faxed copies of the same to Attorney Robert Collins.
By letter to respondent's counsel dated February 22, 2010, Pate acknowledged that he had recently received counsel's disclosure of prospective witnesses and exhibits, but questioned Attorney Collins' involvement in the matter. Pate stated that he had not had contact with Attorney Collins for quite some time. Further, Pate stated that he was confused as to the respondent's intentions in the matter and asked counsel to inform him "what is going on." The envelope in which Pate's letter was mailed to counsel showed a return address of the Columbia Correctional Institution in Portage, Wisconsin.
Counsel for respondent responded to Pate's letter inquiry by letter dated February 24, 2010, addressed to Pate at the Columbia Correctional Institution. Counsel's letter advised Pate that he had sent the exhibit and witness disclosures because the administrative rules required the parties to do this at least 10 days prior to trial. Counsel further stated, "As you know, we have a trial scheduled on Friday, February 26th."
Pate did not appear for the scheduled February 26, 2010 hearing on his discrimination complaint.
At the scheduled February 26, 2010 hearing, counsel for the respondent stated that on or about 10 days prior to the hearing he received a telephone call from Attorney Collins, who stated that he no longer represented Pate but would immediately forward the witness and exhibit list to Pate. Further, counsel for the respondent stated that at that point he re-sent the entire packet of materials to Pate at his Waukau address.
Also, the ALJ stated that as of the day before the hearing he had not received any message from Pate or anyone on his behalf, requesting a postponement of the hearing.
By letter dated February 27, 2010, to the ALJ (which was received at the ERD on March 2, 2010), Pate stated that he was at the Columbia Correctional Institution and did not have an attorney. Pate asked the ALJ to let him know of the outcome of his trial.
On March 4, 2010, the ALJ issued an order dismissing Pate's complaint based on Pate's failure to appear and proceed at the time scheduled for the hearing.
In his petition for commission review of the ALJ's decision, in addition to stating that he is now an inmate at the Columbia Correctional Institution and was not at liberty to attend the February 26, 2010 hearing in Oshkosh, Pate asserts that: 1) by mail he "corresponded with Andrew J. Rossmeissl-Attorney for the Respondent, Muza Metal Products Corp, that he was incarcerated and currently located at C.C.I. and for that reason would not be at liberty to attend that hearing"1(1); 2) he informed Attorney Rossmeissl that he was unaware of any attorney representing him; and 3) his limited legal knowledge and lack of funds prohibit his ability to correspond at will, and that his access to postage is every 14 days per the rules of the correctional institution.
Based upon the above-stated reasons, Pate requests that his case be reopened and that the matter be scheduled for a hearing date following his anticipated release on or about April 12, 2011.
Counsel for the respondent filed a written response to Pate's petition and requests that the commission dismiss Pate's petition for review. Counsel states that: "Ten-days (sic) prior to the hearing, the respondent sent a notice of prospective witnesses and all exhibits to Attorney Collins and to Mr. Pate. It is apparent that Mr. Pate received the disclosures because he responded in writing, asking what our disclosures were. Our office received a copy of Mr. Pate's response on February 24, 2010. It is noteworthy that the respondent's disclosures were sent to the 2531 Waukau Avenue address, which is the same address the hearing notice was apparently sent to. Neither Attorney Collins nor Mr. Pate ever requested any further stay of the February 26, 2010 hearing. Furthermore, neither Mr. Collins nor Mr. Pate ever informed the ERD of a change of address."
Counsel for the respondent argues that even if incarceration would otherwise justify a party's non-appearance, it would not excuse Mr. Pate's failure to inform the ERD of an address change, citing Pechacek v. J C Penney Co. (LIRC, 11/10/89)(Complainant's claim that he never received notice of hearing insufficient to excuse his failure to appear at hearing since it was complainant's responsibility to keep the department informed of his current address).
Counsel further asserts that the respondent has put considerable time and energy into the presentation of its case, complying with multiple information requests prior to the initial determination and preparing for two hearings that did not happen.
Finally, counsel states that to the extent the ALJ's dismissal order does not support the facts as presented in his letter, that the commission base its decision upon a transcript of the February 26, 2010 proceedings if it feels that it would be helpful in making its decision.
Pate filed a reply to counsel's response. Pate states that he finds counsel's correspondence questionable because counsel fails to inform the commission that he informed counsel that Attorney Collins was not representing him in this matter but had been appointed to represent him on his revocation of parole/extended supervision. Pate further asserts, "...the first notice I received was the new schedule dated 12/17/2009 which followed me as I have been transferred in the Wisconsin Prison System", and that he questions counsel's request "to base the LIRC decision on the February 26, 2010 proceedings [counsel?] had advanced knowledge [of?] I was still incarcerated and [counsel?] failed to act accordingly in the best interest of all the parties he claims were inconvenienced." Finally, Pate asserts that counsel "clearly had pertinent information to the February 26, 2010 Hearing that he failed to present as a legal tactic to secure his sought after result."
A party who failed to appear at the hearing may have the hearing reopened, provided the party shows good cause in writing for the failure to appear. Wis. Admin. Code § DWD 218.18(4).
The commission concludes that Pate has not shown good cause for his failure to appear at the February 26, 2010 scheduled hearing. Accordingly, Pate's request to have the hearing reopened must be denied.
While it is not clear what prompted the ERD to issue the notice of hearing on December 17, 2009, it was not unreasonable for the ERD to have done so on that date given that more than one year had elapsed after the previously stated time for Pate's anticipated release from prison.
Pate's assertions regarding his knowledge about the December 17, 2009 notice of hearing are not without ambiguity. For instance, in Pate's March 31, 2010 correspondence he states that "...the first notice I received was the new schedule dated 12/17/2009 which followed me as I have been transferred in the Wisconsin Prison System." (Emphasis added.) Also, the fact that Pate acknowledges receiving the respondent's disclosure of prospective witnesses and exhibits in his February 22, 2007 correspondence to Attorney Rossmeissl indicates that he was receiving notice about his case through some means. On the other hand, in his February 22, 2007 letter to counsel, Pate also states he was "confused as to what [counsel's] intention is in this matter" and asked counsel to "respond informing me what is going on." In addition, in his March 31 correspondence, Pate questions counsel's "request to base the LIRC decision on the February 26, 2010 proceedings "[counsel] had advanced knowledge [of?]"
In any event, the case file does not contain any correspondence from Pate regarding a change of address. Pate himself acknowledges being "transferred in the Wisconsin Prison System", which indicates that he had a new address, but there is nothing in the case file from Pate notifying the department about his being "transferred in the Wisconsin Prison System." In fact, there is an absence of evidence of any communication from Pate (or anyone on his behalf) with the ERD between the time of ALJ Lawent's March 30, 2008 order and Pate's February 27, 2010 correspondence to ALJ Schacht inquiring about the outcome of his trial. The Division sent the December 17, 2009 notice of hearing to Pate at his last known address. The complaint in which Pate filed his claim against the respondent specifically advised him that "The Complainant must notify the Equal Rights Division, if there is a change of address or telephone number. If we are unable to locate the Complainant, the complaint may be dismissed."
Finally, no transcript has been prepared of the proceedings on February 26, 2010; however, a digital recording of that proceeding has been made available for review by the commission. To the extent that Pate may be objecting to the statements made by Attorney Rossmeissl at the scheduled February 26 hearing, that objection is not reason for the commission to grant Pate's request to reopen this matter. It is clear that neither Pate nor anyone on his behalf had kept the department informed of Pate's current address, and that the department had sent the notice of hearing to Pate at his last known address.
cc:
Neil Ray Pate
Attorney Andrew J. Rossmeissl
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