JUAN C MARRERO, Complainant

BULLSEYE INC, Respondent

The complainant filed a late appeal of an Initial Determination of no probable cause. The rule governing the filing of appeals of Initial Determinations of no probable cause is Wis. Admin. Code § DWD 218.08, which states in relevant part:

(1) WHEN FILED. Within 30 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause...

(2) DISMISSAL FINAL IF NO APPEAL FILED. If no timely written request for a hearing is filed, the initial determination's order of dismissal shall be the final determination of the department.

By practice, Initial Determinations are mailed by the Equal rights Division (ERD) by first-class mail to a "cc list" of addressees at the end of the determination. The complainant is always one of the addressees.

In this case the Initial Determination was dated and mailed November 24, 2014. To be timely, an appeal had to have been filed on or before December 23, 2014.

The complainant filed a request to reopen the case by a letter dated January 16, 2015, and received by the ERD on January 29, 2015. The ERD treated it is a late appeal. The complainant's reason for the late appeal was that he did not receive his copy of the Initial Determination, and did not become aware of it until after the appeal period had expired.

Arguments based on the non-receipt of a document mailed by the ERD have been made in this context and others, when a complainant has lost the opportunity to participate in a case by failing to take certain actions, such as failing to respond to a 20-day letter under Wis. Stat. § 111.38(3), or failing to appear for an administrative hearing. In such cases, if it is determined that the ERD properly addressed and mailed the document to the complainant, and the document was not returned to the ERD as undeliverable, a rebuttable presumption arises that the complainant received the document. Vang v. Donaldson Co., ERD Case No. 200004048 (LIRC Aug. 29, 2002); Kemp v. Heinen, ERD Case No. 199804076 (LIRC Feb. 19, 2002), citing State ex rel. Flores, 183 Wis. 2d 587, 612, 516 N.W.2d 362 (1994); Mullen v. Braatz, 179 Wis.2d 749, 763, 508 N.W.2d 446 (Ct. App. 1993).

In this case, the presumption of receipt arose. The Initial Determination was properly addressed and mailed to the complainant, and there is no evidence that the copy mailed to the complainant was returned to the ERD without delivery. As to the complainant's assertion of non-receipt, there is very little detail, other than his simple assertion that he did not receive it. His appeal to the ERD reads in relevant part as follows:

My name is Juan Carlos Marrero and I am appealing to reopen the above-mentioned case. I am including copies of the email conversation I had with Matthew White [the ERD investigator(1)]. I have complied with all requests asked of me from the Department of Workforce Development. I was unable to respond with an appeal in a timely matter [sic], as I did not receive the Initial Determination letter that was supposedly mailed out on the 24th of November 2014. I am including a copy of the "copy" sent to me by Matthew White. I had contacted him approximately two weeks ago on the 8th of January 2015 to get an update on my case because I had not received any responses. He informed me that my appeal due date had expired.
...

The commission has held that a plausible assertion of non-receipt should not be rejected, consistent with due process, without providing an opportunity for hearing to prove non-receipt. Lindsay v. John Deere Horicon Works, ERD Case No. CR200804241 (LIRC Aug. 27, 2011); Wills v. TA Operating LLC, ERD Case No. CR200903932 (LIRC Mar. 31, 2011); Conrad v. AL Schutzman Company, ERD Case No. CR201104291 (Jan. 15, 2014); Carlson v. SPF North America, ERD Case No. CR200601472 (LIRC Apr. 27, 2007). At such a hearing, the burden would be on the party alleging non-receipt to show not only that he or she did not receive the document presumed to be mailed, but also that under all the circumstances it was beyond the control of the party to take timely action. Hernandez v. Starline Trucking Corp., ERD Case No. CR201002662 (LIRC Feb. 29, 2012).

In Hernandez, a case involving the alleged non-receipt of a notice of hearing, the commission reasoned:

While the commission has on some occasions invoked the presumption of receipt of mailed items, referred to in State ex rel. Flores v. State, 183 Wis. 2d 587, 612-613, 516 N.W.2d 362 (1994), see, e.g., Griffin v. Manor Care Health Service, ERD Case No. CR200700667 (LIRC, Mar. 23, 2010), it has also noted that Flores holds that if receipt of the mailing is denied the presumption is spent and a question of fact is raised. Salley v. Nationwide Mortgage & Realty, ERD Case No. CR200502419 (LIRC, Dec. 13, 2007). Wisconsin accepts that the presumption of receipt cannot be given conclusive effect without violating the due process clause. Mullen et al. v. Braatz, 179 Wis. 2d 749, 508 N.W.2d 446 (Ct. App., 1993).

While there are circumstances here which suggest that the complainant should have received the notices of hearing that the file appears to show were mailed to him, the commission cannot disregard the fact that the complaint has expressly and directly asserted, that he did not receive any notification regarding the December 21 hearing.

Here, as in Hernandez, the complainant expressly and directly asserted that he did not receive the Initial Determination or know about it until after the time period for appeal expired. For the foregoing reasons, the commission issues the following:

The June 25, 2015 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 complainant will have the burden to prove that he did not receive the Initial Determination of no probable cause, and further, that under all the circumstances it was beyond his control to file a timely appeal. If at hearing it is determined that the complainant has not met this burden, the ALJ's decision of June 25, 2015 shall be reinstated. If at hearing it is determined that the complainant has met this burden, the case shall be certified for a hearing on the issue of probable cause.

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: Because this order remands the case for further proceedings, it is not considered a final decision subject to judicial review at this time. See Kimberly Area School District v. LIRC, 2005 WI App 262, 288 Wis. 2d 542, 707 N.W.2d 872.

cc: Attorney Peter Andrews 

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(1)( Back ) The copies of email conversations with Matthew White, enclosed with the appeal letter, are dated in October 2014, before the Initial Determination was issued. They have to do with the substance of the complaint, not with the mailing of the Initial Determination. 

uploaded 2015/09/24