JAMES H. SALLEY, JR., Complainant
NATIONWIDE MORTGAGE & REALTY CORP, Respondent
Following a hearing held on August 30, 2006, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. The respondent filed a timely petition for review, in which it asserted that it was not properly notified of the hearing.
The commission has considered the petition, and it has reviewed the case file in this matter. Based on its review, 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 August 30, 2006 hearing.
If the ALJ decides after considering the evidence presented on this issue 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 ALJ decides after considering the evidence presented on this issue 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 allow the complainant to present rebuttal evidence in response to the respondent's case. The ALJ shall then issue a new decision based on all the evidence, including the evidence received at the first hearing held on August 30, 2006.
The ALJ 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 August 30 hearing, or he may first hold a hearing on the issue of the respondent's failure to appear at the August 30 hearing and then schedule and conduct a further hearing on the merits at a later time if he is persuaded the respondent had good cause for its failure to appear at the August 30, 2006 hearing.
Dated and mailed January 12, 2007
salleja . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The Equal Rights Division mailed a notice of hearing to the parties on May 3, 2006, which set forth August 30, 2006, as the scheduled hearing date on James Salley, Jr.'s complaint of alleged race discrimination. The hearing notice listed the respondent's address as 220 Regency CT STE L101, Brookfield WI 53045.
Salley appeared for the August 30 hearing (apparently with a witness) but no one appeared on behalf of the respondent. On November 17, 2006, ALJ James Schacht issued a decision in which he concluded the respondent had violated the Wisconsin Fair Employment Act by discriminating against the complainant on the basis of race. Accordingly, the ALJ ordered the respondent to provide remedial relief to the complainant. A copy of the ALJ's decision was mailed to the respondent at the Regency Court Suite address.
On November 24, 2006, the ERD received a petition for review from Michael Auriemma on behalf of the respondent. Auriemma asserted, among other things, that:
"Nationwide is a separate Wisconsin corporation (1) with its corporate office located at 188 Industrial Dr. Suite 18 (2), Elmhurst, IL 60126. This is registered with the [State] of Wisconsin and The State of Wisconsin Department of Workforce Development. Any [correspondence] sent to any other address will probably not make it to a [corporate] officer and is not considered proper notification."
Auriemma asserted that Nationwide was not properly notified of this matter and that it seeks a new hearing date.
Subsequently, on December 4, 2006, the commission received faxed correspondence from Auriemma, which repeated much of what was stated in the respondent's petition for review, but included an assertion that the respondent would have had someone at the hearing had it known of the hearing, and a request for an opportunity "to defend ourselves."
Thereafter, on December 23, 2006, the commission received two faxed affidavits, ostensibly from Auriemma and an individual named Allen R. Schicker.
Auriemma's affidavit states that he is the owner of Nationwide Mortgage & Realty, Inc. and Schicker's affidavit states he is the manager of Nationwide Mortgage & Realty, Inc., and in both of these affidavits the individuals state that they have not been notified of any hearing for James Salley, Jr. from the State of Wisconsin Department of Workforce Development or any other state agency.
A complainant or respondent who fails to appear at the hearing may have the hearing reopened provided the complainant or respondent shows good cause in writing for the failure to appear. Wis. Admin. Code § DWD 218.18(4).
A failure to appear for a scheduled hearing due to a failure to receive notice of that scheduled hearing would certainly constitute good cause for a party's failure to appear at the hearing.
The commission notes that there is nothing in the case file to show that the copy of the May 3 notice of hearing mailed to the respondent was ever returned to the Division by the Post Office. Also, the respondent obviously did receive a copy of the ALJ's decision sent to the Regency Court Suite address in Brookfield, Wisconsin since the respondent filed a timely petition for review of the ALJ's decision sent to the Regency Court Suite address. Further, the commission notes that the top of the cover letter to the two faxed affidavits submitted by the respondent has the Regency Court Suite address in Brookfield, Wisconsin. On the other hand, Auriemma has asserted that the Regency Court Suite address in Brookfield is not the respondent's proper address and his affidavit and that of Schicker state that they never received notice of the August 30, 2006 scheduled hearing. The commission also notes per the case file that the respondent failed to respond to an ERD notice stating a complaint had been filed against the respondent and requesting a response that was mailed to the Regency Court Suite address, and that a subsequent certified letter sent to the Regency Court Suite address was returned to the Division by the Post Office with a notice that the letter was unclaimed.
It thus appears that the question of whether or not the respondent had good cause for its failure to appear at the August 30, 2006 hearing would best be resolved at a hearing before the ALJ. The question of whether the notice of hearing was received by the respondent is a question of fact. 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 they may be able to demonstrate good cause for failing to appear. Hopson v. Family Dollar Stores (LIRC, 10/30/03).
cc:
Michael Auriemma, President
Nationwide Mortgage & Realty Corp.
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