P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR201002662, EEOC Case No. 26G201001422C

This case arose out of a complaint alleging discharge because of ancestry. After an initial determination of no probable cause and an appeal, a notice of hearing was issued on November 8, 2011, setting the matter for hearing on December 21, 2011. That notice of hearing bore the initials and checkmarks of a staff member of the Equal Rights Division, indicating confirmation that she had mailed it. The address used for the complainant (2232 W Carrington Av, Oak Creek, WI 53154) is the one that had been used for him since the complaint was filed, and it is not disputed that it was the correct, current address for him.

A second notice of hearing was also issued, on November 13, 2011. It was for the same date and location; the only thing it changed was the name of the ALJ assigned. This second notice of hearing was actually a photocopy of the first notice with a change made to the ALJ's name. It bore a handwritten notation stating "Corrected Copy Mailed 11-13-11 / CB," this presumably being another confirmation by a staff member of the ERD that the notice had been mailed.

Although both parties were thus apparently sent copies of the notice of hearing, neither party served a pre-hearing disclosure of witnesses and exhibits pursuant to Wis. Adm. Code § 218.17.

The respondent appeared at the hearing on December 21, 2011, but the complainant did not.

On January 6, 2012, the ALJ issued an "Order of Dismissal - Failure To Appear At Hearing," which was mailed to the complainant using the same address for the complainant as had previously been used for him. On January 11, 2012, the ERD received a letter from the complainant stating that he had received a letter on January 6 indicating that his case was dismissed due to failure to appear in court on December 21st, 2011, and stating further, "I did not receive any notification regarding that hearing prior to this notification."

The rules of the Equal Rights Division provide,

Wis. Adm. Code § DWD 218.18 Hearings.
(4) Failure to appear at hearing. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If, within 10 days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

A complainant whose case has been dismissed for failure to appear at a hearing must demonstrate, on appeal, that there was good cause for the failure to appear at the hearing. Good cause has been defined to mean either that the failure to appear was the result of excusable neglect, i.e., the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances, or a reason, which, if established by competent evidence, would amount to circumstances beyond the individual's control, or which would otherwise have prevented or made it unreasonable for the complainant to appear. Schwarz v. Gateway Tech. College, ERD Case No. 200803337 (LIRC, April 23, 2010).

A party's actual failure through no fault of their own to receive notice of a hearing could, depending on all of the facts, be considered a circumstance beyond the individual's control causing a non-appearance. The question is, how is the validity of a claim of non-receipt of the hearing notice to be evaluated when it is raised in a petition for review to the commission.

The commission has held that the question of whether the notice of hearing was received is a question of fact. Whitlow v. Air Trans Airways, ERD Case No. CR200203151 (LIRC, December 13, 2004). It has also held that as a general rule, factual assertions as to grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests that he may be able to demonstrate good cause for failing to appear. Kieck v. Mas Graphics, ERD Case No. 200502527 (LIRC August 28, 2006); Hopson v. Family Dollar Stores, ERD Case No. CR200203179 (LIRC, October 30, 2003). More recently, it has stated that a plausible assertion of non-receipt of a notice of hearing cannot be rejected or resolved, consistent with due process, without providing an opportunity for hearing. Wills v. TA Operating LLC, ERD Case No. CR200903932 (LIRC, March 31, 2011).

While the commission has on some occasions invoked the presumption of receipt of mailed items, referred to in State ex rel. Flores v. State, 183 Wis. 2d 587, 612-613, 516 N.W.2d 362 (1994), see, e.g., Griffin v. Manor Care Health Service, ERD Case No. CR200700667 (LIRC, Mar. 23, 2010), it has also noted that Flores holds that if receipt of the mailing is denied the presumption is spent and a question of fact is raised. Salley v. Nationwide Mortgage & Realty, ERD Case No. CR200502419 (LIRC, Dec. 13, 2007). Wisconsin accepts that the presumption of receipt cannot be given conclusive effect without violating the due process clause. Mullen et al. v. Braatz, 179 Wis. 2d 749, 508 N.W.2d 446 (Ct. App., 1993).

While there are circumstances here which suggest that the complainant should have received the notices of hearing that the file appears to show were mailed to him, the commission cannot disregard the fact that the complaint has expressly and directly asserted, that he did not receive any notification regarding the December 21 hearing.

After having carefully considered all the circumstances here, the commission believes that it cannot reject the complainant's assertion that he did not receive any notice of hearing, without allowing an opportunity for hearing on the question.

For the foregoing reasons, the commission now issues the following:


The January 6, 2012, decision of the ALJ in this matter is set aside, and the case is remanded to the Equal Rights Division for a hearing, at which the first issue to be addressed should be whether the complainant received notice of the December 21, 2011 hearing held in this matter. The complainant shall be deemed to bear the burden of proof by a preponderance of the evidence to establish that he did not receive such notice. Both parties shall be allowed to present relevant evidence on the issue of whether the respondent received notice of the hearing.

If after considering the evidence introduced on the issue of whether the complainant received notice of the December 21, 2011 hearing held in this matter, the ALJ finds that it establishes by a preponderance of the evidence that the complainant did not receive such notice, the ALJ shall (at that time, or at another time as scheduled by the ERD) conduct further hearing addressing the issues originally noticed for hearing in this matter, and the ALJ shall thereafter issue a decision on those issues based on the evidence received at that further hearing.

If after considering the evidence introduced on the issue of whether the complainant received notice of the December 21, 2011 hearing held in this matter, the ALJ finds that it does not establish by a preponderance of the evidence that the complainant did not receive such notice, the ALJ shall close the hearing and shall re-issue the "Order Of Dismissal - Failure To Appear At Hearing" originally issued on January 6, 2012.

Dated and mailed February 29, 2012
hernandez.rpr.doc : 110 :  


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


cc: Respondent, Attn: Stephen Ball, Pres.

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2012/03/13