Wis.LIRC ER Decision: Zollicoffer - August 25, 2000 - Failure to appear at hearing - "good cause" -sale of respondent to another entity just prior to the hearing - new entity not receiving appropriate information regarding the pending claim

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ESSIE L ZOLLICOFFER, Complainant

RYDER STUDENT TRANSPORTATION SERVICES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803151, EEOC Case No. 26G982000

On July 28, 1999, the Equal Rights Division issued a hearing notice on the complainant's complaint of alleged age discrimination (re promotion and compensation) against Ryder Student Transportation Services, the named respondent in this matter. A hearing date was set for October 22, 1999. The bottom lower left-hand portion of the notice indicates that copies were sent to the respondent at its Milwaukee, Wisconsin address and to a Joann Tolbert-Yancy (hereafter Yancy) for the respondent. The case file shows that Yancy responded to the complainant's complaint on behalf of the respondent. Yancy corresponded with the division on stationery with the letterhead Ryder Integrated Logistics, Inc., which is located in Irving, Texas.

On October 22, 1999, the hearing was held on the complainant's complaint but no one appeared on behalf of the respondent. Subsequently on February 25, 2000, the ALJ issued a decision finding that the complainant had been discriminated against on the basis of age and ordered the respondent to pay the complainant's wage losses.

On appeal from the ALJ's decision Jason M. Baasten states that prior to the issuance of the ALJ's decision he had written to the ALJ on November 12, 1999, explaining why the respondent had failed to appear for the hearing. Baasten enclosed a copy of the November 12 letter stated to have been sent to the ALJ. Baasten's correspondence indicates that he is the associate corporate counsel for FirstGroup America, Inc., formerly known as Ryder Public Transportation Services.

The gist of Baasten's appeal on behalf of the respondent is that the respondent failed to appear for the hearing because the respondent had been sold to a new entity approximately 5 weeks before the hearing and because the company that had been monitoring the outstanding claims against the respondent failed to provide the new entity with adequate information regarding the status of outstanding claims against the respondent.

In the letter dated November 12, 1999, Baasten states the following:

1) That it was not until November 11 that he became aware of the case or the fact the hearing date had been missed and that he promptly left a message with the division;

2) That the respondent does not allege that someone did not receive notice of the hearing on its behalf as the hearing notice indicates that Yancy was designated as the agent for the respondent; however, Yancy was and continues to be an employe of "Ryder System, Inc.";

3) That "(o)n September 13, 1999, Ryder Student Transportation, a subsidiary of Ryder Public Transportation Services, was sold to a new parent company, FirstGroup America, Inc.";

4) That as a result of the sale, Ryder Systems' legal department turned over control of the outstanding claims for Ryder Student Transportation that it had previously monitored, that the transition was less than fluid, and that as a result of the file swap and inadequate information we (apparently FirstGroup) received concerning the status of open files, the hearing date was missed.

Finally, in the November 12, 1999 letter, a request is made that another hearing be set so that the respondent could appear and be heard, or, alternatively, if it was felt that another hearing would be unfair to the complainant, that the respondent be permitted to submit a statement of position concerning the matter.

On appeal Baasten states that the respondent never received any response to its November 12, 1999 letter. The ALJ's February 25, 2000 decision notes that no appearance was made on behalf of the respondent, but makes no mention of the November 12, 1999 letter from Baasten. (The commission also notes that no copy of the November 12 letter appears in the case file except for the one attached to the respondent's petition for commission review.)

While it is not clear what the relationship is between all of the "Ryder" companies or how it came to be that the respondent, a subsidiary of Ryder Public Transportation Services, was sold to FirstGroup America, Inc., which was formerly known as Ryder Public Transportation Services, it is understandable how the sale of the respondent to another entity just prior to the hearing could have resulted in the new entity not receiving appropriate information regarding the pending claim against Ryder Student Transportation Services. Baasten's petition and attached letter indicates just that-that the failure to appear was due to a miscommunication arising out of the respondent being sold. Further, Baasten's petition and attached letter indicates that an attempt was made to remedy this error immediately upon discovering the mistake. The respondent's failure to appear at the hearing under the circumstances asserted falls within the realm of "excusable neglect" and therefore qualifies as good cause for its failure to appear.

Accordingly, the Labor and Industry Review Commission therefore issues the following:

DECISION

The administrative law judge's decision in the above-captioned matter is set aside and this matter is remanded to the Equal Rights Division for a further hearing.

Dated and mailed August 25, 2000
zollies.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: Jason M. Baasten

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