MELANIE THOREEN, Complainant
FABCO EQUIPMENT INC., Respondent A
MANPOWER, Respondent B
Pursuant to authority contained in Wis. Stat. 111.39(5)(c), the commission hereby sets aside its decision issued in the above-referenced matter on November 4, 2009, and issues the following: (1)
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on February 27, 2008. A petition for review was filed by the complainant on April 23, 2008. Because the petition was not received within 21 days of the issuance of the administrative law judge's decision, the commission dismissed the petition as untimely.
The complainant appealed to court, which remanded the matter to the commission for further consideration of the question of whether the complainant's petition for commission review was timely filed. After reconsideration of the matter, the commission accepts the petition as timely and has proceeded to review the case on its merits.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed November 25, 2009
thoreme : 164 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
Timeliness of Petition for Review
When the complainant filed her complaint with the Equal Rights Division (hereinafter "Division") on November 17, 2005, and her amended complaint on April 7, 2006, she resided at Pecan Street in Green Bay. The complainant subsequently moved to Beech Street in Laona. The Division became aware of this new address and the initial determination and hearing notice were mailed to the Laona address. On February 27, 2008, the administrative law judge mailed his decision to the Laona address. However, the complainant had by then moved to an address in Crandon, WI, and did not receive the decision, which was returned to the Division as undeliverable.
On April 17, 2008, the complainant wrote the administrative law judge a letter asking about the status of her case. The envelope in which the letter was sent showed a return address of 201 S. Park Ave. #1, Crandon, WI 54520. On April 21, 2008, the administrative law judge sent the complainant the following response:
"In reply to your April 17, 2008 letter inquiring into the status of the above cases; my decision, another copy of which is enclosed, was issued on February 27, 2008. I see that the return address on your envelope is different from the address we have on file. . ."
On April 22, 2008, the complainant filed a petition for commission review. In her petition the complainant stated that she provided the administrative law judge with her new address in August of 2007, prior to the issuance of his decision. The complainant did not elaborate upon this assertion. She did not explain whether she provided the new address in a letter or over the telephone, nor did she provide a specific date on which she allegedly did so. Because the file contained no record of the Park Avenue address in Crandon, and because the administrative law judge's April 17 correspondence to the complainant indicated that she had not updated her address prior to the issuance of his decision, the commission dismissed the petition as untimely.
The complainant thereupon appealed to court. The court reviewed the file and found two places where a Crandon, WI, address was provided prior to the issuance of the administrative law judge's decision: the bottom of the last page of the complainant's witness and exhibit list, dated January 20, 2007, and the cover of the hearing transcript, dated January 26, 2007. The court set aside the commission's decision and remanded the matter to the commission for a determination, based on the evidence of record, if, and when, the decision of the administrative law judge was mailed to the complainant's "last known address."
The commission has considered the two instances identified by the court in which the complainant's Crandon, WI, address appears. Regarding the witness and exhibit list, the commission is not persuaded that an address inconspicuously typed on the bottom of a document, without any indication from the complainant that it constituted a new or updated address, could be reasonably considered her "last known address." The commission does not think it reasonable to expect the administrative law judge to scrutinize every piece of correspondence in order to determine whether it might contain an address and, if so, to compare that address with the most recent address of record in order to determine whether the address has been updated.
However, the address on the cover of the transcript is a different matter. The fact that the court reporter obtained the Crandon address suggests that the complainant did take additional steps to provide notice of a new address and, although the transcript does not indicate that the complainant mentioned a new address on the record, it is certainly possible that she did so off the record. The commission considers it reasonable to presume that the complainant did provide her address to the court reporter and, further, that any address provided to the court reporter was also provided to the administrative law judge.
Concluding that the Crandon address which appeared on the transcript constituted the complainant's "last known address," the commission finds that the administrative law judge's decision, which was sent to the complainant at her Laona,
WI address, was not mailed to her last known address and that, in fact, no
decision was mailed to an address which could be considered the complainant's
"last known address" until such time as she provided her most recent update in
April of 2008. (2) Because the complainant filed her petition within 21 days after the administrative law judge mailed a copy of the decision to her last known address, the Park Avenue address in Crandon, the commission accepts the petition as timely.
Hearing on the Merits
In her petition for commission review the complainant argues that the administrative law judge shouted at her during the hearing because she was representing herself and did not know legal jargon, humiliated her, and refused to accept her proof of disability. The complainant contends that she was not given a chance to present her case. The complainant's argument fails. Although the commission did not listen to the digital recording of the hearing in order to ascertain the administrative law judge's tone of voice, it read the transcript of the proceedings and finds no support for the complainant's assertions about the manner in which the hearing was conducted. To the contrary, the transcript reveals numerous instances in which the administrative law judge patiently attempted to explain to the complainant how the hearing process worked, what her burden was, how to get her exhibits into the record, and why he made the rulings he did. The administrative law judge expressed concern that the complainant did not appear to understand that, once she rested her case, she would have no additional opportunity to present evidence, and took pains to explain this fact to her and to encourage her to submit all of the evidence she had available. Based upon its independent review, the commission is satisfied that the complainant was treated in a respectful manner and was given a full and fair opportunity to present her case.
The complainant also complains that the administrative law judge granted the respondent's motion to exclude medical evidence that was not certified, when the complainant was representing herself and had not been informed by the Division that her documentation had to be certified. While the administrative law judge was acting appropriately according to longstanding unwritten department policy, subsequent to the issuance of the administrative law judge's decision the Wisconsin Court of Appeals issued a decision in which it held that medical records need not be certified. Rutherford v. LIRC, 309 Wis. 2d 498, 510-512, 752 N.W.2d 897 (Ct. App. 2008). The court found that the Wisconsin Administrative Procedure Act, Wis. Stat. ch. 227, which governs the conduct of contested administrative hearings, requires very relaxed rules of evidence and that there is no statutory requirement that medical records be certified. Consequently, it is an error to exclude medical records solely on the basis that they lack certification. That said, the commission considers it unnecessary to remand this matter in order to admit the disputed documents into the record. The commission has reviewed the complainant's medical documentation and concludes that, even if it had been considered, it would not have been sufficient to warrant a conclusion that the complainant had a disability within the meaning of the law. The medical documents submitted by the complainant, which consist of an x-ray report prepared by a chiropractic clinic and a memo from the complainant's family practice doctor, along with a third medical report that is unsigned and difficult to read, as well as general instructions about post-surgical care and an unsigned document entitled "Explanation of Chiropractic Care," suggest that the complainant was suffering from neck, shoulder and back pain, but do not indicate that she was diagnosed with any permanent medical condition that would constitute a disability.
Finally, the complainant reiterates many of the factual assertions and arguments she presented at the hearing regarding, among other things, the length of her breaks, her need to leave work early due to child care considerations, her notice to a supervisor that she was going to make a chiropractic appointment, her request for a chair, and the fact that she displayed a photograph of her bi-racial child in her work area. The complainant's allegations of discrimination based upon race, color and marital status were untimely filed (3) and, moreover, are unsupported by the facts in the record. The complainant's personal belief that the respondents may have harbored some animus towards her based upon the fact that she is the single mother of a bi-racial child amounts to pure speculation which is unsupported by any competent evidence. The complainant's allegations of failure to accommodate a disability also fail where she did not establish either that she has a disability or that she requested an accommodation. A simple request for a chair, without more, is insufficient to put the respondent on notice that the complainant was requesting an accommodation for a disability. Finally, the complainant's allegations that she was discharged because of a perceived disability fail when there is no credible evidence to suggest that either respondent believed her to be disabled. For all the foregoing reasons, the dismissal of the complaint is affirmed.
NOTE: The commission has sent a copy of this decision both to the complainant's Lakeshore Drive address in Ashland, WI, her most recent address on record with the department, as well as to her post office box in Washburn, WI, which the commission located in the on-line telephone directory, but which the complainant has not provided to the department or the court.
Attorney Thomas R. Crone
Attorney Merrissa L. Osswald
Attorney Peter A. Milianti
Ms. Melanie Thoreen
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(1)( Back ) This action is taken because the commission has modified the second paragraph of the portion of the memorandum opinion entitled "Hearing on the Merits" to reflect that the Wisconsin Court of Appeals has issued a decision holding that medical records need not be certified.
(2)( Back ) The commission notes that the address appearing on the transcript, which was prepared in January of 2007, is that of a post office box. However, the complainant contended that she notified the administrative law judge of a new address in August of 2007 and, at the time she contacted the administrative law judge regarding the status of her case in April of 2008, she provided a street address of 201 S. Park Avenue in Crandon. It is not known whether the complainant's post office box was still active at that point or, if not, whether she had a forwarding order on file with the United States Postal Service. Assuming the latter, then a decision mailed to the post office box would have been forwarded to the complainant at her new address. (United States Postal Service forwarding orders remain in effect for twelve months. See www.faq.usps.com.)
(3)( Back ) The administrative law judge concluded that the complainant is not a member of a protected class by virtue of the fact that she has a bi-racial child. Because the complainant's race complaint was not timely filed, the commission considers it unnecessary to reach that question.