CAROLYN A WEIL, Complainant
SUPERCUTS, Respondent
Summary of proceedings
The respondent failed
to appear for an evidentiary hearing in this matter held on March 28, 2013
before an Administrative Law Judge (ALJ) of the Equal Rights Division (ERD) of
the Department of Workforce Development (DWD).
The ALJ issued a decision on January 3, 2014 concluding that the
respondent had violated the Wisconsin Fair Employment Act (WFEA) by
discriminating against the complainant on the basis of disability and ordering
the respondent to provide a remedy to the complainant.
In January 2015 Regis
Corporation, d/b/a Supercuts (hereinafter referred to as Supercuts), filed a
motion with the ERD to reopen the case for several reasons, including the
allegation that the respondent's failure to participate in the complaint process
or to appear at the administrative hearing was due to the fact that it did not
receive adequate notice of the complaint or the administrative proceedings
generated by the complaint. The ALJ
declined to address the merits of the motion, stating that the ERD lost
authority to act once the 21-day period for commission review of its decision
expired. Wis. Stat. § 111.39(5).
The ERD treated the motion as a petition for review and referred it to
the commission.
On March 5, 2015 the
commission issued a decision denying the respondent's motion to reopen on the
grounds that the commission was without statutory authority to act on a petition
filed more than 21 days after the date the ALJ's findings and order were mailed
to the last-known address of the
respondent.
Supercuts sought
judicial review in state circuit court.
On October 14, 2015, the court held that Supercuts' argument that it did
not receive adequate notice raised a question of procedural due process under
the Wisconsin Constitution and the Federal Constitution, and that in such
circumstances the commission had the authority and the obligation to consider
that question before applying Wis. Stat. § 111.39(5).
As to what constitutes adequate notice, the court provided guidance,
including the following:
“An elementary and
fundamental requirement of due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.”
MacLean v. First Nat'l Bank (In re Estate of MacLean), 47 Wis. 2d
396, 404, 177 N.W.2d 874 (1970) (quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 314-15.
To satisfy due process, an agency must “consider unique information about
an intended recipient regardless of whether a statutory scheme is reasonably
calculated to provide notice in the ordinary case.”
Jones v. Flowers, 547 U.S. 220, 230 (2006).
The court vacated the
commission's March 5, 2015 decision and remanded the matter to the commission:
so that LIRC can determine
whether Supercuts was or was not denied due process.
Specifically, LIRC must determine, in accordance with this decision,
whether Supercuts received adequate notice of the allegations brought against it
by Ms. Weil.
Discussion
The question of the
adequacy of notice to Supercuts appears to involve unresolved questions of fact.
This is not surprising. As
the commission observed in
Hernandez v. Starline Trucking Corp., ERD Case No. CR201002662 (LIRC Feb.
29, 2012):
The commission has held that
the question of whether the notice of hearing was received is a question of
fact.
Whitlow v. Air Trans
Airways, ERD Case No. CR200203151 (LIRC, December 13, 2004). It
has also held that 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 he may be able to
demonstrate good cause for failing to appear.
Kieck v. Mas Graphics,
ERD Case No. 200502527 (LIRC August 28, 2006);
Hopson v. Family Dollar
Stores, ERD Case No. CR200203179 (LIRC, October 30, 2003).
This case is not in a
posture for a factual determination about the adequacy of notice.
Supercuts' assertions in support of its motion have not been tested in an
evidentiary hearing, and Ms. Weil, clearly an interested party, has not
submitted any response to the assertions.
Even focusing only on the file documents and the documents attached to
Supercuts' motion to reopen, it is not clear whether notice to Supercuts was
inadequate. It is apparent from
these documents that Supercuts does not deny that the ERD sent notices to
its Greenfield salon. In fact, it
appears that one of those notices, a 20-day letter sent by ERD's investigative
unit in October 2012, was sent by certified mail, and somebody (identity
unknown) at the Greenfield location signed for it.
Supercuts explained the inadequacy of such notices in an affidavit
submitted by Regis Corporation's in-house counsel, stating that the Greenfield
salon did not have a manager from April 2, 2012 until January 2013, and that no
management personnel were regularly present at the salon until January 2013.
The complaint was not filed with the ERD until August 2012, so it may be
true that no manager was at the salon to receive a copy of the complaint, or
subsequent notices from the ERD, until January 2013.
But the notice of hearing on the merits was mailed on January 25, 2013,
the same month that the Greenfield salon apparently hired a new manager.
It is an open question whether the new manager in Greenfield received the
notice of hearing, and if so, whether the manager's receipt of the notice
constituted adequate notice to the corporation, whether or not the notice was
forwarded to the corporate office.
The respondent acknowledged in its documents that a salon manager should be
aware that personnel documents should be sent to the corporate office.
This issue is not the only unresolved factual issue concerning the
adequacy of notice, but it highlights the need for an evidentiary hearing on the
adequacy of the notice.
In view of the commission's need to consider evidence and
make findings of fact in order to comply with the court's order that it make a
determination as to whether Supercuts received adequate notice, the commission
issues the following
ORDER
Dated and mailed January 29, 2016
794
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
cc:
Attorney Raymond Dall'Osto
Attorney Erik Eisenmann
uploaded 2017/01/19