MATT S MCGUIRE, Complainant
WAL-MART, 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 complainant, by facsimile transmission ("FAX"). The issue for decision is whether that petition was timely.
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).
Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:
All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .
Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:
(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. Except in the case of a petition for review in fair employment and public accommodations cases under s. 106.52 or s. 111.39(5) Stats., where a facsimile transmission filed after the regular business hours of the equal rights division shall be considered filed on the next business day, a petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition. If the commission's or department's records indicate receipt of the facsimile at a date later than that shown, then the later date shall control.
The ALJ's decision was dated and mailed on April 4, 2012. Therefore, the last day on which a timely petition for review could have been filed was April 25, 2012.
The complainant FAXed two copies of his petition for review to the ERD on April 25, 2012, one to the FAX machine in the ERD's Milwaukee office, and one to the FAX machine in the ERD's Madison office. The issue, however, is the time at which these FAXes were transmitted on that day. As indicated by LIRC's rule quoted above, Wis. Admin. Code § LIRC 1.025(3), the rules of the Equal Rights Division allow filing by FAX but effectively provide that documents filed by FAX after 4:30 P.M. shall be considered filed on the next business day. The ERD's rule, Wis. Adm. Code § DWD 218.25(1)(b), provides:
The date of transmission recorded by the division's facsimile machine shall constitute the date of filing of a document under this section, except that documents filed by facsimile after the regular business hours of the division as established by [Wis. Stat.] s. 230.35 (4) (f), Stats., or on a day when the offices of the division are closed pursuant to s. 230.35(4)(a), Stats., shall be considered filed on the next business day of the division. (1)
This ERD rule applies to petitions for LIRC review. Thomas v. ITT, Hrg. No. CR200703942 (LIRC, May 29, 2008).
There are a number of markings of various types on the FAXed petitions submitted in this case, which bear on the question of when they were filed. These include markings apparently originating with the sending FAX machine, markings apparently originating with the receiving FAX machines, rubber-stamped "Received" stamps, and hand-written markings.
While the markings on the FAXed petitions originating with the sending and receiving FAX machines are partly incomplete and are not entirely consistent as to the exact times of transmission and receipt, the commission is nonetheless satisfied that they demonstrate that the FAXed petitions were transmitted to, and received by, the offices of the ERD, at some time shortly after 4:30 P.M. on April 25, 2012.
The finding that the petitions were FAXed some time after 4:30 P.M. on the day in question is consistent with the fact that the FAXed petitions were hand-stamped with "Received" stamps bearing the date April 26, 2012. It appears that these FAXed petitions were first noted and attended to on the following day, and that they were then hand-stamped with "Received" stamps bearing that day's date pursuant to the ERD's rule providing that documents filed by FAX after the close of business were to be deemed received on the next business day.
The finding that the petitions were FAXed after 4:30 P.M. is also consistent with the fact that the ERD issued a letter on May 1, 2012, copies of which were sent to the complainant and to counsel for the respondent, prominently advising that a petition for review was filed by Complainant on April 25, 2012 at 4:40 P.M.
The commission notes that after this letter was sent out, the complainant did not contact the ERD to dispute the indication that the petition had been filed at 4:40 P.M. on the day in question. The complainant did not raise the assertion that he "was faxing previous to 4:30 PM," until several weeks later, only after the respondent filed a Motion To Dismiss Complainant's Untimely Request for Review. The commission does not find this unelaborated assertion by the complainant sufficient to outweigh the indications in the record that the petitions were FAXed after 4:30 P.M.
For all the foregoing reasons, the commission finds that the petitions for commission review filed by the complainant by FAX as described above were not timely, because they were filed after the regular business hours of the ERD. There is no contention, and there is no basis to find, that the petitioner was prejudiced because of exceptional delay in the receipt of a copy of the decision, within the meaning of the applicable statutes. Therefore, the commission issues the following:
The petition for review is dismissed.
Dated and mailed June 28, 2012
mcguirema . rpr : 110 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
NOTE: The commission rests its decision in this case on the fact that the petitions for review were not timely. However, it notes that if there had been a timely petition and it had therefore reviewed the underlying decision of the ALJ, it would have arrived at the decision to affirm that decision, for the following reasons.
The complainant was originally scheduled to have a hearing on his complaint on January 17, 2012. He did not appear at that hearing. He subsequently submitted an explanation for his failure to appear at the hearing which had to do with severe winter weather on that day. In response, the ALJ scheduled a hearing for March 30, 2012, to be held on the issue of whether the complainant had "good cause," within the meaning of Wis. Adm. Code § DWD 218.18(4), for his failure to appear at the January 17 hearing.
The ALJ sent notice of this hearing to the parties by a letter dated March 9, 2012. She initially sent that letter to the parties in the form of an attachment to an e-mail sent on March 9, 2012; she also mailed a hard copy of the letter to the complainant on March 12, 2012. It is not disputed that the complainant received this letter, and that he in fact had it with him on the morning of March 30.
The ALJ's letter giving notice about the March 30 "good cause" hearing started with this paragraph:
I am writing to confirm that I will be conducting a "good cause" hearing in the above matter on Friday, March 30, 2012, beginning at 10:00 a.m. in the Upper Level Conference Room of the Iowa County Courthouse at 222 North Iowa Street, Dodgeville, Wisconsin 53533.
The bold-face emphasis was included in the original.
On the day of the hearing, the ALJ arrived at the Upper Level Conference Room of the Iowa County Courthouse shortly before 10:00 A.M. She stayed there until approximately 10:45 A.M. The complainant never appeared.
During that time, the ALJ also checked her office voice mail and determined there was no message from the complainant, and she spoke by phone to the receptionists for the ERD at its Madison and Milwaukee offices and was told by them that the complainant had made no contact with them.
In his petition for review, the complainant makes a number of assertions about why he did not appear at the March 30 "good cause" hearing. The complainant's explanation is, in brief, that when he went to the Iowa County Courthouse at 9:45 A.M. on March 30, 2012, he went to the courtroom of the Iowa County Circuit Court, and sat there until at least 11:00 A.M. When he finally went to the Upper Level Conference Room of the Courthouse, this being at some point after 11:00 A.M., no one was there, the ALJ having left as described above.
In order to establish good cause for failing to appear at a hearing, a party must show that the failure to appear was either the result of excusable neglect, or a reason which would amount to circumstances beyond the individual's control or which would otherwise have prevented or made it unreasonable for the party to appear. Ellingsworth v. Humana Ins., ERD Case No. CR200901209 (LIRC, 12/30/10). Excusable neglect is the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances. Alvey v. First Student, Inc., ERD Case No. 200802323 (LIRC, 08/22/11). Excusable neglect is not synonymous with neglect, carelessness or inattentiveness. Martin v. County of Milwaukee, ERD Case No. 200304928 (LIRC, 12/17/04).
The complainant here received the notice of hearing, which expressly stated, on its face, with emphasis, that the hearing would be held in the Upper Level Conference Room of the Iowa County Courthouse. Nevertheless, for a reason which he does not explain, when he got to the Iowa County Courthouse the complainant went instead to the courtroom of the Iowa County Circuit Court. That was not "reasonably prudent;" it was neglectful, careless and inattentive.
Furthermore, the complainant's initial, inexplicable choice to go to the courtroom of the Iowa County Circuit Court when the notice of hearing had told him that the hearing would be held in the Upper Level Conference Room, was hardly the extent of the complainant's neglect, carelessness and inattentiveness on the day in question.
When he got to the courtroom, complainant looked at the docket information posted there about what matters were being heard that day, and he noted that nothing was listed about his case. He acknowledges that he himself found that "unusual." Right there, the complainant had a clear sign that he was possibly at the wrong location in the courthouse. But even though he had with him the letter about where the hearing was to be held, he did not check it to see whether it told him what room the hearing was to be held in. That was not "reasonably prudent;" it was neglectful, careless and inattentive.
The complainant says that because of this "unusual" situation he went to look for help -- but all he did was to go to the Law Library, where (he says) he found "nothing." Then, he did not then go to the office of the Clerk of Court, where there would have been people on duty, or to any other office in the courthouse. Even though he had not resolved the question of why his case was not listed outside the courtroom, he simply went back to the courtroom. That was not "reasonably prudent;" it was neglectful, careless and inattentive.
When the proceedings began in the courtroom at 10:00, the complainant would have been given more indications that he was in the wrong location. He had been specifically advised by letter that his case was going to be heard by ALJ Deborah Little Cohn. The presiding circuit court judge in Iowa County, who would have been the judge who the complainant saw come into the courtroom, is the Honorable William D. Dyke. The complainant continued to just sit there. Even as that judge called and heard a case not involving him, and then called and heard another case not involving him, the complainant continued to just sit there. He sat there as an hour passed. Remarkably, during all this time he still did not look at the letter he had gotten from the ALJ, which he had with him right there, to see what it told him about where he should go for his hearing. These things were not "reasonably prudent;" they were neglectful, careless and inattentive.
The fact that the complainant was in the courthouse at the time the hearing was scheduled, is not relevant. He had been given clear and specific notice that his hearing would be held in a particular room in the courthouse. He did not show up there, or make any effort to contact the ERD, until an hour had passed, well more than the time period during which ALJs generally wait for tardy parties.
A failure to carefully read a hearing notice does not establish good cause.
Malone v. Froedtert Memorial Lutheran Hosp., ERD Case No. 200202957 (LIRC, July 30, 2003). In this case, it appears that the complainant failed to read anything in the hearing notice about where the hearing was to be held, beyond the fact that it was going to be in the Iowa County Courthouse. This failure continued in the face of repeated indications
that the complainant was in the wrong place. The complainant clearly did not have good cause for his failure to appear at the hearing.
cc:
Attorney Jennifer M. Cerven
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