DAMON J FORD, Complainant
CHICAGO GRILL INC, Respondent
On December 5, 2014, an administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter dismissing the complainant's complaint because of his failure to appear at the November 5, 2014 hearing. The complainant filed a timely petition for commission review.
Based upon a review of the matter, the Labor and Industry Review Commission hereby issues the following:
Dated and mailed February 27, 2015
forddarpr . doc : 164 : 5
765
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
In his petition for commission review the complainant explains that he never received notice of the hearing and that, had he known about the hearing, it would have been his top priority. The complainant further states that he noticed his old address is on file but he had all his mail forwarded to his new address, so he should have received the notice. The complainant does not assert that he notified the Equal Rights Division (hereinafter "Division") of his new address, and there is nothing in the case file to indicate that he did so.
On the "Equal Rights Complaint Process Information Sheet" that is completed along with the complaint form, complainants are provided with the following warning:
(Important! The Complainant must notify the Equal Rights Division, if there is a change of address or telephone number. If we are unable to locate the Complainant, the complaint may be dismissed.)
Noting the existence of that language, the commission has held that a party has an obligation to keep the Equal Rights Division informed of his or her address, and that failure to do so will prevent a finding of good cause for non-appearance at a hearing based on an assertion that the notice of hearing was not received. Abudooh v. Menards, ERD Case No. 199900192 (LIRC Jan. 28, 2000); Fitzgerald v. Family Dollar, ERD Case No. CR200300435 (LIRC April 30, 2004). See, also, Pechacek v. J. C. Penney, ERD Case No. 8850103 (LIRC Nov. 10, 1989); Moses v. Northshore Healthcare Center, ERD Case No. 9130451 (LIRC June 6, 1991);
Only one of the cases cited above involved a party who had failed to keep the Division informed of his or her new address, but who asserted that a forwarding order had been filed with the United States Postal Service. In that case, Fitzgerald v. Family Dollar, ERD Case No. CR200300435 (LIRC April 30, 2004), the commission nonetheless found that the complainant lacked good cause for missing the hearing. In so finding, the commission observed that putting in a forwarding order with the post office does not satisfy the obligation to notify the Equal Rights Division directly of an address change so that the Division can change its records and send correspondence directly. However, the commission focused primarily on the fact that the complainant had received other information that would have put her on notice that the hearing was pending, including a Notice of Appearance from the respondent's attorney, and a copy of the respondent's witness and exhibit list, the cover letter for which referenced the date of the scheduled hearing. Citing previous commission decisions finding that receipt of a witness and exhibit list constituted "constructive notice" of the scheduled hearing, whether or not the hearing notice was received, the commission found that, at the very least, receipt of such documents should have prompted the complainant to contact the Division.
The commission did not specifically indicate in Fitzgerald whether, in the absence of other evidence to suggest that the complainant should have been aware of the hearing date, good cause may have been found. However, in a related context, the commission has found that failure to provide the unemployment insurance division with a new mailing address is not fatal to a claim that a party had good cause for missing a hearing where the individual has filed a forwarding order with the United States Postal Service. Indeed, the commission has repeatedly held that filing a postal forwarding order is a step reasonably undertaken to ensure that a party will continue to receive his or her mail without interruption. See, Bertrand v. Cops Construction, Inc., UI Hearing Dec. No. 01401947AP (LIRC Nov. 20, 2001); Reed v. Keiding Inc., UI Hearing Dec. No. 02607614MW (LIRC Jan. 22, 2003); Rice v. Wisconsin Lutheran Child & Family Service, Inc., UI Hearing Dec. No. 02607 (LIRC Feb. 6, 2003); Perkins v. Atlas Board Up Services, UI Hearing Dec. No. 08005249MD (LIRC March 20, 2009).
While, in both the fair employment and unemployment insurance contexts, parties
are advised to keep the Division notified of any changes in address, the purpose
of this requirement is to enable the Division to contact the parties during
pendency of the proceedings. (1) It therefore stands to reason that parties who have made arrangements to remain in contact with the Equal Rights Division or Unemployment Insurance Division by having their mail forwarded to a new address may have good cause for missing a hearing if, notwithstanding these efforts, the hearing notice does not arrive.
For the reasons set forth above, the commission believes that the complainant's failure to notify the Division of his new mailing address is not fatal to a claim that he had good cause for missing the hearing, provided the complainant can show that he took reasonable steps to update his address with the United States Postal Service, and provided that there is no other reason to believe that the complainant was or should have been aware of the hearing date. This matter is therefore remanded for a further hearing, at which the complainant will have an opportunity to present evidence establishing that his failure to appear at the originally scheduled hearing was with good cause.
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