DENNIS L. WILLS JR, Complainant

TA OPERATING LLC
d/b/a TRAVEL CENTER OF AMERICA, Respondent

This matter arises out of a complaint alleging that the respondent discharged the complainant because of race, in violation of the Wisconsin Fair Employment Act. After an Initial Determination finding no probable cause was issued, the complainant filed an appeal, and the matter was scheduled for a hearing before an administrative law judge (ALJ) for the Division, to be held on March 1, 2011. On March 1, 2011, the respondent appeared at the place and time set for the hearing, but no appearance was made by or on behalf of the complainant. After waiting one half hour after the scheduled starting time, and with the complainant having still not appeared, the ALJ closed the hearing, and on March 10, 2011, he issued an "Order Of Dismissal - Failure To Appear At Hearing" dismissing the complaint based on the complainant's failure to appear at the hearing.

On March 24, 2011, the Equal Rights Division received a letter from the complainant objecting to the dismissal of his complaint and asserting that he never received any notice of the hearing date for March 1, 2011, by mail, FAX, phone or any other medium. This letter was treated as a petition for commission review.

The file of the Equal Rights Division forwarded to the commission in this matter contains a copy of the notice of hearing in this matter, dated January 7, 2011 and notifying the parties that the hearing will be held at 9:00 A.M. on March 1, 2011. This notice of hearing shows the name and correct address of the complainant in the caption, and at the bottom it has a printed "cc:" indication listing both "Complainant" and "Respondent."

However, the commission also notes that the notice of hearing lacks a characteristic which normally serves as an assurance that the notice was properly mailed. It has been the usual practice of the Equal Rights Division, for many years, that the employee responsible for mailing notices of hearing places checkmarks next to the words "Complainant" and "Respondent" where they appear in the "cc:" notation at the bottom of the original file copy of the notice of hearing, along with her initials, as a confirmation to both herself, and to others who may later raise an issue about it, that she has in fact mailed copies of the notice to such parties. There are no such markings on the original file copy of the notice of hearing in this case.

The assertion made by the complainant that he never received any notice of the hearing held in this matter, is not incredible on its face. Particularly given the lack on the original file copy of the notice of hearing, of the expected markings confirming mailing, the assertion that complainant never received any notice of the hearing held in this matter must be viewed as plausible. Such a plausible assertion of fact cannot be rejected or resolved, consistent with due process, without providing an opportunity for hearing.

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

The March 10, 2011 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 March 1, 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 March 1, 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 March 1, 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 March 10, 2010.

Dated and Mailed  March 31, 2011
willsde : 110 :  

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: In a letter opposing the petition for review, counsel for the respondent argues that the notice of hearing was sent to the complainant's last known address, and that the respondent served its Notice of Appearance and List of Documents and Witnesses on the complainant at his last known address and it was not returned to respondent. It argues that because the complainant has not raised any contention that his address has changed or that the wrong address was used by the ERD, the presumption of delivery of properly addressed mail sent through the U. S. Postal System should apply. In that regard, it argues that mere denial of receipt is not sufficient to rebut this presumption, citing In Re Cruey, 158 B.R. 66.69 (Bankr. W. D. Va. 1993).

However, the presumption is that an item which was mailed, was received. It is not a presumption that an item was mailed. As was recognized in one of the cases cited in Cruey itself, "[p]roper mailing...must be proved before the presumption is activated." In re Robintech, Inc., 69 Bankr. 663, 665 (Bankr. N.D. Tx 1987), rev'd on other grounds 863 F.2d 393, cert. denied 493 U.S. 811, 110 S. Ct. 55 (1987). There must be some basis in the record for finding that the item was mailed. Thus, for example, in Cruey the record contained a certificate of mailing from the deputy clerk of the court. 158 B.R. at 69.

In cases involving decisions of the ERD, there is no certificate of mailing or other similar document attesting to the fact that the notice of hearing was mailed. There is only the file copy of the notice itself, typically bearing a "cc:" notation at the bottom. As discussed above, though, the ERD has for many years also followed a regular practice of having the employee who actually does the mailing of the notice of hearing, expressly note their completion of that duty by making a checkmark by the name(s) of the parties sent copies of the notice and by marking their initials. As in the case of a certificate of mailing, the precise purpose of this practice is to create a reliable indication that the notice was in fact mailed, and of specifically who did so. Given this, the absence of the expected marking not only leaves the record without that reliable indication, but indeed creates positive reason to doubt whether there was "proper mailing." The commission believes that in these specific circumstances, the presumption of receipt should not be applied.

cc:
Attorney Mary Jo Harris
Assistant General Counsel
Travel Centers of America

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uploaded 2011/04/05