Wis.LIRC ER Decision: Vang, Nhia - August 29, 2002 - Procedure - failure to appear at hearing - There is a rebuttable presumption that mail, which is properly addressed, is delivered and received - while complainant asserted that he never received notice of hearing, copy of notice in ERD files lists his address and shows that ERD mailed him a copy, and no such notice was returned by Post Office - presumption of receipt not rebutted by complainant's assertion that he did not receive notice

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

NHIA CHUE VANG, Complainant

DONALDSON COMPANY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200004048, EEOC Case No. 26GA10455

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 29, 2002
vangnh . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

On April 12, 2002, the Equal Rights Division issued a notice to the parties scheduling a hearing on Nhia Chue Vang's complaint of alleged race and ancestry discrimination. The notice informed the parties that the hearing would be held on July 23, 2002, at 9 a.m. at the Dunn County Judicial Center.

Mr. Vang did not appear for the scheduled hearing on his complaint. As a result, the ALJ assigned to hear Mr. Vang's case dismissed the matter with prejudice.

On appeal Mr. Vang asserts that he did not receive the division's notice of the hearing. There is, however, a rebuttable presumption that mail, which is properly addressed, is delivered and received. Kemp v. Heinen (LIRC, 02/19/02), 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). While Mr. Vang denies receipt of the notice of hearing, the notice of hearing that is kept in the case file shows that the division had the correct address for Mr. Vang and that the division mailed a notice of the hearing to him. Furthermore, as indicated in the ALJ's decision, no notice of hearing was returned to the division as undeliverable by the post office.

The commission finds that Mr. Vang has not rebutted the presumption that he received notice of the hearing and therefore affirms the ALJ's dismissal of this matter with prejudice.

cc:
HMAA - Eau Claire
Attorney Randy G. Millard

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uploaded 2002/09/06