ELNORA C. WHITLOW, Complainant

AIR TRANS AIRWAYS, Respondent

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 by the Respondent, in which it asserted that it had never received the notice of hearing and had for that reason not appeared at the hearing held in this matter on June 10, 2004.

The commission has considered the petition, and it has reviewed the file in this matter. Based on its review, the commission now makes the following:

The September 1, 2004 decision of the ALJ in this matter is set aside.

This matter is remanded to the Equal Rights Decision for further hearing, before the same ALJ, on the issue of whether the Respondent had good cause for its failure to appear at the hearing in this matter.

If the ALJ decides after considering the evidence presented on that issue that the Respondent did not have good cause for its failure to appear at the hearing in this matter, he shall re-issue his original decision as his final decision in the matter.

If the ALJ decides after considering the evidence presented on that issue that the Respondent did have good cause for its failure to appear at the hearing in this matter, he shall conduct further hearing to allow the employer to present its case and to allow the employee to present rebuttal evidence in response to the employer's case, and he shall then issue a new decision based on all the evidence, including the evidence received at the first hearing held on June 10, 2004.

The ALJ may, in his discretion, either conduct a further hearing on the merits on a provisional basis in conjunction with and at the same time as the hearing on the issue of good cause for failure to appear at hearing, or he may hold a separate hearing on the issue of good cause for failure to appear at hearing and then schedule and conduct further hearing on the merits at a later time if he is persuaded that the Respondent had good cause for its failure to appear at hearing.

Dated and mailed December 13, 2004
whitlel . rrr : 110 : 

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

This matter arose out of a charge filed with the EEOC. That charge gave the address of the Respondent as 1688 Phoenix Parkway, Suite 1704, Atlanta, Georgia, 30349. Materials in the file show that this charge, and subsequent correspondence from the EEOC to the Respondent, was received by the Respondent at this address. The Respondent, by its Manager of Employee Relations and Diversity, Amy L. Morris, provided several written responses to the EEOC during the course of its investigation of the charge, all of these responses on letterhead showing the Phoenix Parkway address for the Respondent.

After the EEOC completed its processing of the charge, the ERD began an investigation into the matter. The ERD investigator sent a letter to the Respondent, at its Phoenix Parkway address, on January 20, 2004. There is no indication in the file that this letter was ever returned to the ERD by the U.S. Postal Service. There was no response to this letter.

On February 10, 2004, the ERD again sent a letter to the Respondent, at its Phoenix Parkway address, this time by certified mail, again seeking information regarding the matter. According to the certified mail receipt card and tracking data, this letter was received by the Respondent at its Phoenix Parkway address on February 13, 2004. The file contains no written response by the Respondent to this letter, nor is there any indication in the Investigator's Log of any other response. The Respondent is now asserting that it attempted to contact the ERD investigator by telephone after receiving this letter but that it was unable to contact her until after the Initial Determination had been issued on March 2, 2004.

The Initial Determination issued in this matter, along with a notice that the matter was being certified to hearing, was mailed to the Respondent at its Phoenix Parkway address on March 2, 2004. The Respondent has conceded that it received these documents.

The Notice of Hearing in this matter was mailed to the Respondent at its Phoenix Parkway address on March 30, 2004. There is no indication in the file that this document was ever returned to the ERD by the U.S. Postal Service. However, the Respondent has asserted that it did not receive this document.

The matter came on for hearing on June 10, 2004. The Complainant appeared and presented evidence; the Respondent did not appear. Thereafter, the ALJ issued his decision finding and concluding based on the evidence presented at the hearing that the Respondent had discriminated against the Complainant because of her race when it declined to hire her.

The ALJ's decision was mailed to the Respondent at its Phoenix Parkway address on September 1, 2004. It is not disputed that the Respondent received this document.

The Respondent thereafter filed a petition for review in which it asserted that it had never received the notice of hearing and that it failed to appear at the hearing for that reason. It has supported this assertion by providing an affidavit from its Manager of Employee Relations and Diversity, Amy L. Morris, in which she avers that she has reviewed her files and the files of the Respondent's employee relations and diversity office, and that she has spoken with staff at the Respondent's Phoenix Parkway facility, and that there is no record of the notice of hearing having been received there.

The commission is presented on the one hand with a sequence of events, including the Respondent's acknowledged or demonstrated receipt of every document sent to its Phoenix Parkway address except for the notice of hearing, and the fact that the notice of hearing mailed to the Respondent was not returned to the ERD by the U.S. Postal Service, from which it might be inferred that Respondent received the notice of hearing. It is presented on the other hand with a facially plausible assertion by the Respondent, in the form of an affidavit, that the notice of hearing was not received. The question of whether the notice of hearing was received by the Respondent is a question of fact. As a general rule, factual assertions as to grounds for failure to appear at a hearing will not be rejected without an opportunity for hearing where the non-appearing party suggests that they may be able to demonstrate good cause for failing to appear. Hopson v. Family Dollar Stores (LIRC, 10/30/03). In the circumstances here, the commission concludes that a hearing is necessary.

cc: Attorney Andrew A. Jones

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