SHARONNA BURRIGHT, Complainant

ASHLEY FURNITURE INDUS., INC, Respondent

This matter arose from a complaint of discrimination filed in November 2013. At that time the complainant was represented by Attorney Justin W. Peterson. That representation continued through the investigation of the complaint, the issuance of an Initial Determination on July 9, 2014, and the scheduling of a hearing date of January 23, 2015.

Then on January 20, 2015, Attorney Peterson ceased representing Ms. Burright. As a result, the January 23, 2015 hearing was cancelled.

On February 4, 2015, a Revised Notice of Hearing was issued which set the matter for hearing at 9:30 A.M. on May 7, 2015, at the Trempealeau County Courthouse in Whitehall, Wisconsin. The copy of that notice contained in the file in this case indicates that a copy of the notice was mailed to the complainant, using the address she had provided in her complaint, which was and continues to be her last-known address. There is no indication in the file that the copy of the Revised Notice of Hearing sent to the complainant on February 4, 2015 was returned to the ERD by the postal service.

At some point in the later part of March 2015, the complainant retained Attorney Mark Lee Snell to represent her.

Neither the complainant nor Attorney Snell appeared at the scheduled May 7, 2015 hearing. The respondent appeared by counsel, with a number of witnesses. After waiting a half hour after the scheduled start time, the presiding administrative law judge went on the record. There followed some discussion about the circumstances of the matter, which included the fact that in the preceding weeks there had been some e-mail contact between the respondent's attorney and Attorney Snell, who had indicated to the respondent's attorney that he was representing the complainant. This discussion included the following:

JUDGE SELSOR: ... Do you have any questions for me or any other comments before we close?

MR SHILLINGSTAD: No, Your Honor. But just to be clear, there was an attorney who at least e-mailed me saying that he represented the Complainant, and I just wanted to get that on the record, at least, that Mark Snell, an attorney from Hudson, Wisconsin,...Mark Snell at the Snell Law Office, P.O. Box 1359 Hudson, Wisconsin. He and I had exchanged e-mails a couple weeks ago concerning a settlement, and we reached an impasse with our discussions and that they wanted to go forward with the hearing. So, for that reason, we're here today. So I just wanted to get that on the record. I have not received any e-mails or voice mails from Mr. Snell concerning that, and I have not had any contact, certainly, with Ms. Burright since the cancellation of the last hearing last January.

JUDGE SELSOR: So it sounds as though at least as of two weeks ago Attorney Snell was aware of the upcoming hearing?

MR SHILLINGSTAD: Yes, Ma'am.

JUDGE SELSOR: I will just note on my end I have not received a notice of appearance by Attorney Snell or by anyone else for Ms. Burright.

With that, the ALJ closed the hearing. Thereafter, on May 29, 2015, the ALJ issued an Order Of Dismissal - Failure To Appear At Hearing, dismissing the complaint with prejudice based on the complainant's failure to appear at the hearing.

On June 11, 2015, the ERD received a letter from Attorney Mark Lee Snell objecting to dismissal of the complaint. This letter was treated as a petition for LIRC review and the file was accordingly forwarded to the commission. On June 15, 2015, the ERD received a letter from the respondent's attorney responding to the letter from Attorney Snell.

The rules of the ERD provide:

Wis. Admin. Code § DWD 218.18 Hearings.
. . .
(4) Failure to appear at hearing. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If, within 10 days after the date of hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.(1)

The issue for decision is whether the complainant had good cause for failing to appear at the hearing on May 7, 2015.

Attorney Snell's argument on behalf of the complainant is as follows:

My client never received notice of a hearing date, and, more importantly, I never received notice. As you will note, I was not listed as an addressee on the May 29th letter. I submitted a Notice of Appearance to the Division on March 24, 2015. In that Notice, I explicitly stated that it was my understanding that a hearing date was not yet scheduled. Subsequent to providing that Notice, I contacted the Division by phone requesting a hearing date. I was not provided with a response.

Further, in complete disregard for professional courtesy, opposing counsel never once clarified that a hearing date was scheduled. I have been in contact with opposing counsel on several occasions and I made it clear that my client was under the impression that a hearing date was not yet scheduled. Opposing counsel never once mentioned a hearing date even after I was not included on any notice and made it clear that I did not receive any notification of a hearing date.

Justice demands that this case be reopened and that a hearing be scheduled as soon as possible.

Counsel thus seeks to place responsibility for his lack of awareness that a hearing was scheduled for May 7, on the ERD, and on counsel for the respondent.

The commission has carefully considered the representations made on the complainant's behalf. Its views regarding these representations are as follows.

"My client never received notice of a hearing date" - This assertion by Attorney Snell is unpersuasive because he does not have personal knowledge as to whether his client, the complainant, received notice of the hearing date. The Revised Notice of Hearing scheduling the hearing for May 7, 2015, was mailed to the complainant on February 4, 2015, almost two months before Attorney Snell became the complainant's counsel. The most Attorney Snell can competently say in this regard, is that his client told him she had not received a notice of the May 7 hearing. Because it is second-hand, this has less weight than an assertion directly from the complainant.

This assertion is also unpersuasive because the contents of the ERD's file indicates that the complainant was mailed a copy of the February 4, 2015 "Revised Notice of Hearing" setting May 7 as the hearing date. As noted above, the copy of that notice contained in the file in this case indicates that a copy of the notice was mailed to the complainant, using her correct address; furthermore, there is no indication in the file in this case that that notice was returned to the ERD by the postal service.

"More importantly, I never received notice" - It is true that Attorney Snell did not receive a copy of the Revised Notice of Hearing issued on February 4, 2015, from the ERD. Yet this is unsurprising: at that point he was almost two months away from any involvement in the case. At that time, the ERD had no reason to send him a notice.

"I was not listed as an addressee on the May 29th letter" - It is true that Attorney Snell was not an addressee on the May 29 Order of Dismissal. Yet this too would be unsurprising if he had not sent a Notice of Appearance to the ERD. The significant question here is whether he did so.

"I submitted a Notice of Appearance to the Division on March 24, 2015" - This assertion is difficult to credit because there is no such document in the case file of the ERD in this matter. The ALJ who presided at the May 7 hearing also expressly noted on the record that she had not received a notice of appearance from Attorney Snell.

This assertion is also unpersuasive because Attorney Snell inexplicably failed to submit with his letter a copy of the Notice of Appearance he says he submitted. It seems unlikely that Attorney Snell would have submitted such an important document and not retained a copy of it. Submitting a copy of such a Notice of Appearance would have made the assertion as to its filing much more plausible. These things make it all the more peculiar that it was not submitted.

"Subsequent to providing that Notice, I contacted the Division by phone requesting a hearing date. I was not provided with a response" - This assertion is unpersuasive because of its curious ambiguity. If he actually contacted the ERD by telephone - that is, if he was actually connected through to someone to whom he put his request concerning a hearing date, in exactly what respect was he "not provided with a response"? Did the person on the phone literally say nothing when Snell asked about a hearing date? This seems highly unlikely.

The commission also finds the argument that the respondent's attorney was at fault, to be unpersuasive. The commission has carefully considered the assertions made by the complainant's attorney about his interactions with the respondent's attorney, and vice-versa. It thinks that the complainant's attorney, believing as he apparently did that no hearing was scheduled, interpreted what the respondent's attorney said in a way that was consistent with his (mistaken) belief that no hearing was scheduled. It thinks that the respondent's attorney, knowing as he did that a hearing was scheduled for May 7, genuinely believed that complainant's attorney was aware of this as well, and thus had no occasion to think about "clarifying" that for him.

In addition, the circumstances here should have alerted counsel for the complainant that a hearing was to be held soon. The Respondent's Responses To Complainant's First Set Of Requests for Production of Documents, served by respondent on April 30, 2015, had content which an attorney would or should have understood as an indication that a hearing was scheduled in the matter in early May. Specifically, those discovery responses had objections to the discovery based on the fact that the deadline date for the discovery responses (April 30) was after the deadline for compliance with Wis. Admin. Code § DWD 218.17. That provision applies to require parties to file and exchange disclosures of potential witnesses and exhibits no later than 10 days prior to hearing. From that fact, counsel for the complainant would or should have known that a hearing was scheduled no more than 10 days after April 30.

For the foregoing reasons, the commission concludes that the complainant has not shown "good cause" for her failure to appear at the hearing in this matter, within the meaning of Wis. Adm. Code § DWD 218.18 (4), and on that basis it issues the following:

Dated and mailed July 22, 2015

burrish_rrr : 110 : 765

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

There is a rebuttable presumption that mail, which is properly addressed, is delivered and received. Where the case file shows that the ERD had the correct address for a party and that it mailed a notice of hearing to him, and where no notice of hearing was returned to the division as undeliverable by the post office, it may be found that the party has not rebutted the presumption that he received notice, despite his denial that he received the notice. See, Vang v. Donaldson Co., ERD Case No. 200004048 (LIRC, 08/29/02). In a case such as this, in which there is not a denial directly from the party that they received the notice, but only a denial by their counsel who himself has no personal knowledge of whether that denial is true, there would seem to be more basis for finding that the presumption of delivery has not been rebutted.

It has been held that "a plausible assertion of non-receipt of a notice of hearing cannot be rejected or resolved, consistent with due process, without providing an opportunity for hearing." Hernandez v. Starline Trucking Corp., ERD Case No. CR201002662 (LIRC, 02/29/12). In this case, however, considering all of the circumstances, the commission does not find the assertion by complainant's counsel that his client did not receive the notice of hearing, to be a plausible assertion of non-receipt.

Given the presumption of delivery to and receipt by the complainant of the February 4, 2015 Revised Notice of Hearing, and given the lack of a plausible assertion by the complainant of non-receipt, there is not a sufficient basis to conclude that "good cause" for complainant's non-appearance at hearing was established. In addition, for the reasons discussed above, the assertions made by counsel for the complainant about contacts with the ERD do not persuade the commission that complainant's non-appearance was the fault of the ERD.

The commission would note that Wis. Stat. § 111.39(5)(c) provides:

On motion, the commission may set aside, modify or change any decision made by the commission, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence.

If within the timelines of this statute the commission is provided a direct (i.e., by the complainant rather than by her counsel) assertion that the complainant did not receive the February 4, 2015 Revised Notice of Hearing, and a copy of the Notice of Appearance which it is asserted that complainant's counsel filed with the ERD, the commission would be in a position to consider whether to set aside, modify or change the decision.

cc: Attorney Hal Shillingstad
     Attorney Mark Lee Snell

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(1)( Back ) This language can be read to provide that the only way a non-appearing complainant may avoid the sanction of dismissal for non-appearance, is by showing good cause for that non-appearance within 10 days after the date of the hearing. However, the commission has effectively rejected this reading. See, Ellingsworth v. Humana Ins., ERD Case No. CR200901209 (LIRC, 12/30/10). It treats the rule as providing a "good cause" standard which, if shown to be satisfied, avoids dismissal. Thus, if the reason for non-appearance is provided to the ALJ within 10 days the ALJ may decide if "good cause" was shown and dismiss the complaint if it is not, while if the non-appearing party submits an explanation for the non-appearance after that time, but still within the time to petition for review of the ALJ's decision, LIRC may apply the "good cause" standard in the context of review of the ALJ's dismissal order. 

uploaded 2015/08/19