RYAN JAMES CARLSON, Complainant

SCATZ SPORTS BAR AND NIGHTCLUB, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the respondent, Scatz Sports Bar and Nightclub ("Scatz").

The applicable statutes provide that a party who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order, that if no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the parties the findings and order shall be considered final, and that if the commission is satisfied that a petitioner has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department. Wis. Stat. § 111.39 (5).

The administrative law judge's decision having been dated and mailed on December 29, 2010, the last day on which a timely petition for review could have been filed was January 19, 2011. The petition for review was filed by facsimile transmission which was transmitted to and received by the Equal Rights Division on January 26, 2011.

The respondent acknowledges that its petition for commission review was not timely. Its only argument is that it should be entitled to an extension of the time allowed for filing under the "exceptional delay in receipt" provision in § 111.39(5)(b). The respondent argues that all prior correspondent from the ERD had been sent directly to the owner of the respondent at an address he had provided the ERD early on, but that the final decision was mailed to a different address and for that reason there was a delay in the decision getting to him. The commission finds the respondent's argument to be unpersuasive, for the following reasons.

The complaint in this matter, which was filed on May 22, 2009, identified the respondent as Scatz Sports Bar & Nightclub and used the address of Scatz, 2248 Deming Way, in Middleton, Wisconsin. The Equal Rights Division served the complaint on the respondent by mailing it to Scatz at that Deming Way address.

In the investigation, the ERD dealt with Scott J. Piernot, the owner of Scatz. Piernot is also Vice President and Manager of a business called Realtime Utility Engineers, Inc. Except for Piernot's involvement in both, Realtime is unconnected to Scatz. It does appear that during the course of the investigation, Piernot had e-mail contacts with the ERD investigator from his e-mail account at Realtime, that he provided the mailing address of Realtime to the ERD investigator, and that the investigator did use that address to send letters about the case to Piernot, on two occasions in June and July 2009. However, it was also the case that Piernot sent the investigator position statements in the form of letters on Scatz letterhead, showing the Deming Way address for Scatz.

What the commission finds most significant, is that whatever arguable ambiguity or confusion may have existed during the investigation as to the address to be used for contacting the respondent, it did not continue. The Deming Way business address of Scatz was the one that was consistently used after that point:

• The Initial Determination, issued on August 20, 2009, was sent to Scatz at the Deming Way address. There is no indication that a copy of it was sent anywhere else.
   
• The Certification to Hearing issued on September 23, 2009, was sent to Scatz at the Deming Way address. There is no indication that a copy of it was sent anywhere else.
   
• On October 29, 2009 the complainant's attorney served a discovery request on the respondent using Scatz' Deming Way address, with no indication that a copy of it was sent anywhere else. It is clear from the subsequent response to that discovery request, that it was received.
   
• On November 27, 2009, Piernot sent the complainant's attorney a discovery response, on Scatz letterhead, showing the Deming Way address.
   
• The Notice of Hearing issued on April 5, 2010 was sent to Scatz at the Deming Way address. There is no indication that a copy of it was sent to any other address. Piernot clearly received that notice; he appeared at the hearing.

Piernot has asserted in an affidavit, that

[b]ecause previous ERD communications had been sent to both my Realtime address and to the Scatz address, Scatz employees assumed that I had received a copy of the Decision at my realtime address, and no Scatz employee brought the decision to my attention.

This assertion by Piernot about what other Scatz employees supposedly assumed, is not supported by affidavits from any such employees. If based on statements such employees made to Piernot, then his assertion is not competent. The same is true if it is based merely on Piernot's speculation about what may have happened. And even as a speculation; it makes no sense: Scatz employees could not have formed an assumption that Piernot was receiving copies of documents in the case at another address, based on his receipt at another address of two letters from the investigator, unless they knew he had received those letters at that other address. There is no indication or assertion that they did.

The commission finds that at the time the decision in this matter was issued, the Deming Way address for Scatz was the last-known address of the respondent within the meaning of Wis. Stat. § 111.39(5)(b). There is no reason to doubt, that the copy of the decision mailed to Scatz using that address on December 29, 2010 was received there in due course thereafter. It appears that any delay Piernot experienced in actual personal receipt of the copy of the ALJ's decision which was mailed to him, was caused by his own or his employees' negligence in attending to mail properly sent to the business. This is not the kind of "exceptional delay" contemplated by Wis. Stat. § 111.39(5)(b).

The commission therefore finds that the petition for commission review was not timely and that the petitioner was not prejudiced because of exceptional delay in the receipt of a copy of the decision, within the meaning of the applicable statutes.

The petition for review is dismissed.

Dated and Mailed March 15, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

cc:
Attorney William A. Abbott
Attorney Amy F. Scarr

Ed. Note: This decision was modified by a subsequent decision issued April 8, 2011.

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uploaded 2011/04/05