ROBERT LINDSAY, Complainant
JOHN DEERE HORICON WORKS, Respondent
This matter arises out of a complaint alleging that the respondent discriminated against the complainant because of disability in violation of the Wisconsin Fair Employment Act.
After an Initial Determination finding no probable cause was issued, the complainant filed an appeal. Hearing was initially noticed for November 30, 2010, but that date was cancelled. Hearing was then noticed for March 23, 2011, but that date too was cancelled.
According to the ALJ's decision, at some point following the cancellation of the March 23, 2011 hearing date, the ALJ held a telephone conference with the parties in which rescheduling of the hearing was discussed. The date on which this telephone conference was held is not stated in the ALJ's decision, and the fact that such a conference was held is not reflected anywhere else in the file.
According to the ALJ's eventual decision, in this telephone conference in which rescheduling was discussed, the parties orally agreed that the hearing would be held at 9:00 A.M. on June 9, 2011, and the ALJ informed the complainant that a new hearing notice would be mailed to him.
The file in this matter contains a May 5, 2011 "Notice Of Hearing Change" notifying the parties that the hearing would be held at 9:00 A.M. on June 9, 2011.
On June 9, 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 June 30, 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. As noted above, in his Order the ALJ stated that in calls between the ALJ, the respondent's attorney and the complainant, the parties had orally agreed to re-schedule the hearing for 9:00 A.M. on June 9, 2011.
On July 13, 2011, the Equal Rights Division received a letter from the complainant petitioning for review of the dismissal of his complaint. In this petition for review, the complainant wrote:
I can offer no explanation for the confusion I had about the time and date of the hearing. Immediately after the conversation with Judge Brown and Atty. Hobbs I recorded the date of June 20 at 9:00 AM in three different locations. Upon arrival on June 20 shortly after 8:00 AM I discovered the building to be locked and no one in the immediate area. I attempted to contact Judge Brown by telephone and subsequently Kathy Braun an administrative assistant in the ERD hearing office in Milwaukee. On the second or third call to Ms. Braun I was able to make contact and was informed that Judge Brown was on vacation. I explained I had a hearing scheduled for that day. Ms. Braun checked her computer and informed me that the hearing had been scheduled for June 9th. The comment I "had heard nothing either way on it" was in reference to Ms. Braun's statement that the hearing was June 9th and I must have been a no show, hadn't I been informed of that fact.
The only documentation I could locate was my recording of the date of June 20th. I have not been able to locate any correspondence from the ERD to indicate the date of June 9th. I do have a hearing deficit that occasionally will cause me to mishear things but I do not believe I could have mistaken the ninth and twentieth.
The statement in the complainant's petition for review, that "I do have a hearing deficit that occasionally will cause me to mishear things but I do not believe I could have mistaken the ninth and twentieth," may be taken as raising a question about whether there actually was an oral agreement in a telephone call, to have the hearing on June 9, 2011. The statement in the complainant's petition for review, that immediately after the conversation with the ALJ and the respondent's attorney he recorded a hearing time and date of 9:00 A.M. on June 20 in three different locations, may also be taken as an implied argument that June 20 was the date they actually agreed on in the call.
Even if there was a misunderstanding of some kind in the telephone conference concerning what date was being agreed on, this would not necessarily provide the complainant with good cause for not appearing at the hearing on June 9, 2011. The ALJ had informed the complainant in this telephone conference that a new hearing notice would be mailed to him. Also, the file does contain a May 5, 2011 "Notice Of Hearing Change," notifying the parties that the hearing would held at 9:00 A.M. on June 9, 2011. If after the telephone conference, the complainant received a written notice informing him that the hearing was to be held on June 9, that would have cured the effect of any misunderstanding which may have occurred or of any previous agreement to a different date.
However, the statement in the complainant's petition for review, that "I have not been able to locate any correspondence from the ERD to indicate the date of June 9th," may be taken as an assertion that the complainant did not receive any notice of a June 9 hearing date. The commission believes that if that is the case, and if the complainant's non-receipt of the hearing notice was not his own fault, then "good cause" for non-appearance would have to be found. (1)
The commission has been reluctant to reject plausible assertions of non-receipt of a notice of hearing, without at least providing the party making such an assertion the opportunity to try to prove such assertions. Wills v. TA Operating LLC d/b/a Travel Center of America, ERD Case No. CR200903932 (LIRC Mar. 31, 2011), Monti v. DGB Enterprises, Case No. CR200902976 (LIRC Jul. 29, 2011).
In deciding whether assertions of non-receipt of a hearing notice are sufficiently plausible to warrant providing an opportunity for hearing on the non-receipt issue, the commission has considered it relevant when the file in a case shows that the ERD did not follow its normal procedure by which the clerical person doing the mailing checkmarks and initials the "cc:" entries on the notice of hearing to confirm who mailed the notices and that they were indeed mailed. See, e.g., Wills v. TA Operating LLC d/b/a Travel Center of America, ERD Case No. CR200903932 (LIRC Mar. 31, 2011). In this case, the May 5, 2011 "Notice Of Hearing Change" setting this matter for hearing on June 9, 2011, did not show the checkmarks and initialing on the "cc:" entry.
Considering the circumstances here, the commission believes that it is necessary to give the complainant an opportunity for hearing on the factual issues relevant to the question of whether he had good cause for his failure to appear at hearing.
For the foregoing reasons, the commission now issues the following:
The June 30, 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 had good cause for his failure to appear at the June 9, 2011 hearing held in this matter. The complainant shall be deemed to bear the burden of proof by a preponderance of the evidence as to facts sufficient to establish that he had such good cause. Both parties shall be allowed to present relevant evidence on the issue of whether the complainant had good cause for his failure to appear at the June 9, 2011 hearing.
If after such hearing the ALJ finds that the complainant had good cause for his failure to appear at the June 9, 2011 hearing, the ALJ shall (at that time, or in a separate proceeding on a later date, in the discretion of the ALJ) 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 following the further hearing ordered herein the ALJ finds that the complainant did not have good cause for his failure to appear at the June 9, 2011 hearing, the ALJ shall close the hearing and shall re-issue the "Order Of Dismissal - Failure To Appear At Hearing" originally issued on June 30, 2011.
Dated and mailed
August 26, 2011
lindsayro . rpr : 110 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
cc:
Eric E. Hobbs, Attorney for Respondent
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