TONYA CHERRY, Complainant

MILWAUKEE TRANSPORT SERVICES INC, Respondent

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

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based upon its review of the matter, for the reasons set forth in the attached Memorandum Opinion, the Labor and Industry Review Commission issues the following:

The decision by the ALJ dated December 5, 2008, is hereby set aside and this matter is remanded to the Equal Rights Division for further proceedings and a new decision on the issue of probable cause on complainant's discrimination complaint.

Dated and mailed May 21, 2009
cherrto . rpr : 125 : 9 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Timeliness of petition for review

On December 5, 2008, the Equal Rights Division mailed to the parties a copy of the ALJ's decision, which dismissed Tonya Cherry's discrimination complaint in this matter. On December 29, 2008, Ms. Cherry filed a written petition for commission review of the ALJ's decision. The petition for review was filed three days late. For the reasons discussed immediately below, the commission notified the parties by letter dated January 30, 2009, that it would review the ALJ's decision issued in this matter.

The case file indicates that the copy of the ALJ's decision that was mailed to the parties shows a former address for Ms. Cherry in the caption of the case. However, the notice of appeal rights page, which the Division attached to the ALJ's decision, showed Ms. Cherry's address as 2119 W Pierce St, Upper Front, Milwaukee, WI 53204-1163. Since the Division attaches the notice of appeal rights page to the ALJ's decision when it mails copies of ALJ decisions to the parties, it was likely that the Division mailed a copy of the ALJ's decision to Ms. Cherry at the 2119 W Pierce Street address.

In any event, the case file indicates that on December 15, 2008, the Division took a call from Ms. Cherry in which she provided a new address and inquired about the decision on her complaint of discrimination. The case file indicates that pursuant to Ms. Cherry's call, on December 15, 2008, the Division re-sent a copy of the ALJ's decision (with a note on the notice of appeal rights stating that her appeal is due on December 26, 2008) to Ms. Cherry at the following address:

3002 W Pierce St, Apt. 3
Milwaukee, WI 53215

The case file further indicates, however, that the copy of the ALJ's decision that the Division re-sent to Ms. Cherry on December 15, 2008, was sent to an incorrect address. Ms. Cherry's correct address was 3022 W Pierce Street. The case file indicates that the Division learned of Ms. Cherry's correct address on December 29, 2008, when she came into the Division's office. On December 29 Ms. Cherry provided the Division with a written statement that she had never received the ALJ's decision dated December 5, 2008, and that her address was 3022 West Pierce St. Apt. 3. In a second written statement Ms. Cherry stated why she wanted to appeal the ALJ's decision. December 29, 2008, was three days after the last day on which Ms. Cherry could file a timely petition for review of the ALJ's decision.

The commission's authority is limited to a review of written petitions received by the Division within 21 days after a copy of the ALJ's decision is mailed to the last known address of the parties. Wis. Stat. s. 111.39(5); Wis. Admin. Code DWD s. 218.21(2).

An exception under Wis. Stat. s. 111.39(5) provides that if the commission is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of the ALJ's decision the commission may extend the time another 21 days for filing the petition with the Division. Wis. Stat. s. 111.39(5)(b).

While it is not known when Ms. Cherry moved from the 2119 W Pierce Street address to the 3022 W Pierce Street address, the case file indicates that on December 15, 2008, Ms. Cherry had contacted the Division to notify the Division of her new address, and that she had inquired about the decision on her complaint of discrimination. Ms. Cherry's December 15, 2008 inquiry about the decision on her complaint suggests that she had not received a copy of the ALJ's decision. Further, as of that date she still had 11 days in which to file a petition for review of the ALJ's decision with the Division. However, on December 15, when the Division re-sent a copy of the ALJ's December 5, 2008 decision to Ms. Cherry it did not mail it to her correct address. This supports Ms. Cherry's December 29 written assertion that she never received a copy of the December 5, 2008 decision. Clearly if Ms. Cherry never received a copy of the ALJ's decision, she has been prejudiced because of exceptional delay in the receipt of a copy of the ALJ's decision.

Since it was clear that Ms. Cherry was seeking review of the ALJ's decision, rather than prolonging the matter by extending the time for her to file a petition by another 21 days, the commission advised the parties that it would simply review the case. A briefing schedule was established for the parties to submit written arguments regarding Ms. Cherry's complaint of discrimination. 
 

Discrimination complaint

The Wisconsin Public Accommodations and Amusement Law provides, in pertinent part, that "No person may...1. Deny to another...the full and equal enjoyment of any public place of accommodation...because of race, color..." Wis. Stat. § 106.52(3).

Ms. Cherry, a black female, alleges that on March 6 and 7, 2007, bus drivers for the respondent Milwaukee Transport Services, Inc. (MTS) denied her bus service. The Equal Rights Division issued an Initial Determination finding no probable cause to believe the respondent had violated Wis. Stat. § 106.52 by denying Ms. Cherry the full and equal enjoyment of a public place of accommodation or amusement because of race or color. Ms. Cherry filed a timely appeal and the ERD certified matter for a hearing on the issue of probable cause.

At the probable cause hearing, Ms. Cherry testified that on March 6, 2007, she waited at the bus stop on the corner of 15th Street and Lincoln for the #30 route bus that goes east on Lincoln. Ms. Cherry testified that she could see the bus about two or three blocks away and that the bus driver sat there for about 20 to 25 minutes before the driver finally came and picked her up. Ms. Cherry testified that this was bus #4307. Ms. Cherry testified that after paying her fare she asked the bus driver, a white female, why the driver didn't pick her up and the driver "said something real rude". Ms. Cherry testified that she just went and sat down. Ms. Cherry did not explain what the driver said that was "real rude." Ms. Cherry admitted that the bus driver made no mention of her race.

Ms. Cherry testified that on March 7, 2007, she was waiting for the bus on South Chase Street and Lincoln. Ms. Cherry testified that she waited for the bus for an hour and a half and that when bus #4422 came, the driver, a white male, kept right on going without picking her up. Ms. Cherry testified that she was at the right bus stop, that the bus was the right route # because she looked at the bus sign and number, and that the bus did not have a "not in service" sign. Ms. Cherry testified that the bus driver saw her because she was right there at the bus stop; that she saw the driver look at the bus stop from a distance and that the driver saw her and just kept right on going. Ms. Cherry testified that she was the only one at the bus stop.

At the close of Ms. Cherry's case the respondent moved to dismiss Ms. Cherry's complaint. As grounds for dismissal, the respondent argued that Ms. Cherry had failed to identify any instance in which she was denied service, and that Ms. Cherry had further failed to offer any evidence at all that any such alleged denial was caused by her race.

The ALJ granted the respondent's motion to dismiss and in a decision subsequently issued on December 5, 2008, the ALJ concluded that the respondent "did not deny to the Complainant the full and equal enjoyment of a public place of accommodation or amusement because of race [or color] in violation of the Act."

Paragraph 5 of the ALJ's decision offers the only clue as to why he concluded there was no violation of the WPAAL on March 7, 2007. That finding reads, "Later on March 7, 2007, Cherry called the MTS office to make a complaint. Cherry spoke with a Capt. Beheke. Cherry told Capt. Beheke she had no idea why the buses had failed to pick her up."

In written argument to the commission in support of the ALJ's decision, the respondent asserts that:

Ms. Cherry's complaint must be dismissed because she failed to establish that MTS denied her access to...the full and equal enjoyment of MCTS bus service or that her race motivated MTS's provision of services to her."

Ms. Cherry admits that she boarded the bus on Lincoln Avenue, without impediment, and that once she boarded the bus the operator made no reference to her race....Ms. Cherry also admits that her only "evidence" that her race was a factor in either incident about which she complains is her testimony that the bus operators in both instances were Caucasian....Finally, while Ms. Cherry has a vague recollection that Captain Behnke (sic) asked her her race, she admits that Captain Behnke (sic) did not refuse to accept her complaint or otherwise fail to assist her.

The evidence regarding Ms. Cherry's claim that she was "denied bus service" on March 6, 2007, is weak. Nevertheless, the evidence Ms. Cherry presented regarding the alleged bus service on March 7, 2007 is sufficient to establish probable cause to believe that she was denied the full and equal enjoyment of a public place of accommodation in the absence of any evidence presented on behalf of the respondent.

With respect to the alleged denial of bus service on March 7, 2007, Ms. Cherry testified that she was at the right bus stop; that the bus driver was white; that the driver saw her; that the bus was the right route # because she looked at the bus sign and number; that the bus did not have a "not in service" sign; that she saw the driver look at the bus stop from a distance; that she was standing at the bus stop; that the driver did not stop to pick her up; and that she was the only one standing at the bus stop.

Further, with respect to the ALJ's paragraph 5 findings, Ms. Cherry did not testify that she told Captain Beheke that "she had no idea why the buses had failed to pick her up", Ms. Cherry testified that she did not tell Captain Beheke why she thought the drivers were not picking her up. At the hearing, Ms. Cherry testified that she "had no idea [why the drivers were not picking her up], I thought it was completely racism, that's what it looked like to me, just total racism." Indeed, on March 8, 2007, the very next day after Ms. Cherry's conversation with Captain Beheke, Ms. Cherry filed a Public Accommodation or Amusement complaint with the Equal Rights Division alleging that she was treated differently because of her race and color.

Finally, the commission notes that the hearing held in this matter was a hearing on the issue of probable cause, not a hearing on the merits as indicated by the ALJ's conclusions of law.

cc: Attorney Tricia Feiertag

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