Wis.LIRC ER Decision: Brunette, Susan - September 30, 2016 - 722.1 Procedure – late appeal of initial determination – complainant credibly testified that her appeal was late because she never received the initial determination – the fact that the complainant received other mail from the department does not call into question her testimony that she did not receive the initial determination – when the complainant spoke with a department representative she did not request a copy of the initial determination, however she understood the decision was adverse to her and had enough information to file an appeal.

The decision of the administrative law judge is set aside, and the matter is remanded for a hearing before a different administrative law judge on the issue of probable cause.

On July 31, 2015, an Equal Rights Officer for the Equal Rights Division (hereinafter “Division”), issued an initial determination finding no probable cause to believe that the complainant was discriminated against in retaliation for reporting an incident of abuse or neglect under the Health Care Worker Protection Act. A copy of the initial determination was mailed to the complainant at her address of record with the Division. The final day to file an appeal was August 30, 2015. The complainant's appeal was not filed until September 23, 2015 and was, therefore, untimely.

In her letter of appeal, sent by certified mail to the attention of Larry Jakubowski, the Civil Rights Bureau Director, the complainant stated:

“I am writing this in regards to my retaliation case against Cardinal Ridge Residential Care LLC. Mr. Johnny Nelson is my case worker for this file. I spoke with him several times over the ph. As of early June 2015 he had not yet made a decision and told me it could take up to 2 years with some cases. I called him in early Sept. 2015 and he said it would only be a few more weeks. I then spoke with a Ms. Amy Russell and she looked into my file and told me that I was sent a dismissed decision on July 31^st. I never received that letter. There seems to be some confusion. The letter was sent out July 31^st 2015 yet Mr. Nelson stated to me in Sept. 2015 that he had not yet made a decision. I am asking you to please re-open my case so that I may appeal the decision that I never received. I would like to have the opportunity to read the decision. Had I received it when Ms. Russell said it was sent out I would have appealed the decision.”

Based on the complainant's assertion that she never received the initial determination, a hearing was held with respect to the timeliness of her appeal. The hearing took place on February 25, 2016. On April 29, 2016, the administrative law judge who held the hearing issued a decision affirming the dismissal of the complainant's complaint. The complainant has filed a timely petition for commission review of the administrative law judge's decision and order of dismissal.

The mailing of a letter creates a rebuttable presumption that the letter was delivered and received, which shifts to the challenging party the burden of presenting credible evidence of non-receipt. Deering v. Beverly Enterprises-Wisconsin Inc., ERD Case No. CR200504591 (LIRC June 20, 2008), citing State ex rel. Flores v. State, 183 Wis. 2d 587, 612-613, 516 N.W.2d 362 (1994). As the complainant observes in her petition, however, it is difficult to prove that a letter was not received. In the absence of evidence showing that the document was returned to the Division as undeliverable, the only way in which the complainant can rebut the presumption of receipt is by offering credible testimony that she never got it.

In this case, the complainant testified that she resided at the address to which the initial determination was mailed, was at the residence every day, and was not away on vacation at the time when the determination should have been received. The complainant stated that she has had problems with the receipt of her mail in the past, but did not complain to the post office because it was never anything of any magnitude and did not happen frequently. When pressed, the complainant testified that during the first six months of 2015 there was only one piece of mail she knew of that did not arrive. She indicated that she had received other mail from the Division without any difficulty.

The commission sees no reason to question the credibility of the complainant's testimony on this point. While the administrative law judge noted that the complainant received all other mail from the Division, as well as documents relating to her unemployment insurance claim, the fact that other mail was received does not call into question the complainant's testimony that she did not receive the initial determination. If anything, an assertion that a single piece of mail was not delivered would tend to be more credible than an assertion that none of the mail sent by the Division was received by the complainant. The commission has issued decisions in the unemployment insurance context that are consistent with this reasoning. See, for example, Allen v. Will Enterprises Inc., UI Dec. Hearing No. 07602429MW (LIRC June 29, 2007) and Warne v. Reynolds Wheels Intl., UI Dec. Hearing No. 06003479 (LIRC Dec. 7, 2006)(the fact that the employee received other documents mailed to him by the department does not render his assertion that he did not receive the initial determination incredible). On the other hand, where an employee asserted that she received virtually none of the correspondence from the department (10 pieces total), the commission found that version of events to be “simply not plausible.” Dabney v. Roettgers Company Inc., UI Dec. Hearing No. 02605248MW (LIRC June 9, 2006).

The other reasons cited by the administrative law judge for disbelieving the complainant relate to extraneous matters that do not have any direct bearing on her testimony of non-receipt. Although it is unclear from the record exactly when the complainant is contending she spoke with the investigator and was told that the decision had not yet been issued,[1] this does not call into question her testimony that she never received the initial determination and only became aware of it when she spoke with a different Division employee in September. Nor is the commission troubled by the fact that the complainant did not ask that employee to send her a copy of the determination. The complainant clearly had enough information to understand that the determination was adverse to her, and credibly testified that she assumed the employee would be mailing her a copy of the determination.

The commission sees nothing in the record to contradict the complainant's testimony that she did not receive the initial determination, nor is there any reason to believe that her failure to receive that document was due to her own actions, such as by moving without providing a forwarding address for her mail or going on vacation without arranging for someone to monitor the mail in her absence. Further, it appears that the complainant acted diligently to file an appeal once she became aware of the adverse determination, and followed the instructions she was given by Division staff. Under the circumstances, the commission considers it appropriate to set aside the decision dismissing the complainant's appeal and to grant the complainant an opportunity for a hearing on her complaint.

Footnotes:

[1] The administrative law judge found that the complainant accused the investigator of lying to her about whether the decision had been issued. However, the complainant's testimony was that she received inconsistent information from different Division employees. The complainant did not suggest that the investigator lied to her. Rather, as she stated in her letter of appeal, there was “some confusion.”