STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MICHELLE MAXEY, Complainant

PICK N SAVE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701786, EEOC Case No. 26G971179


On July 14, 1998, an administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision dismissing the complainant's complaint of alleged discrimination on the ground that she failed to respond within 20 days to a certified letter he mailed to the complainant requesting that she contact the division. Section 111.39(3), Wis. Stat., provides that the department shall dismiss a complaint if the person filing the complaint fails to respond within 20 days to any correspondence from the department concerning the complaint and if the correspondence is sent by certified mail to the last-known address of the person.

A notice regarding appeal rights was attached to the ALJ's July 14, 1998 decision, which informed the parties that a petition for commission review of the decision must be received by the division within 21 days from the date of the decision or the decision would become final. Accordingly, August 4, 1998, was the last day for the complainant to timely file a petition for commission review of the ALJ's decision. The complainant's petition for review of the ALJ's July 14, 1998 decision was not filed with the department until August 6, 1998, making it two days late. The complainant asserted in her petition that she did not receive the ALJ's decision dismissing her case, that she had just learned from her attorney (1) that her case had been dismissed for failure to respond to the certified letter, that she had not received the certified letter and that she had spoken with Irene Torres of the Equal Rights Division back in April and given Ms. Torres her new address. The complainant stated that she would like to again give her address, which she stated was 4122 32nd Ave, Kenosha, Wisconsin 53140. The ALJ's certified letter (dated June 3, 1998) and his July 14, 1998 decision were sent to the complainant at her old address, 1311 Park Circle, Sun Prairie, Wisconsin 53590.

Wisconsin Administrative Code, section DWD 218.21(2) (2), provides as follows:

The petition for review shall be filed within 21 days after the date that a copy of the administrative law judge's decision and order is mailed to the last known addresses of the parties.

Section 111.39(5)(b), Wis. Stat., provides, in part, as follows:

If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner (ALJ) is mailed to the last-known address of the respondent the findings and order shall be considered final...If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings....If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.

The commission concluded in a decision issued on September 21, 1998, that the question of whether it had jurisdiction to review the ALJ's July 14, 1998 decision as well as the question of whether or not the complainant's complaint had been properly dismissed for failing to respond to the certified letter sent by the ALJ were both controlled by the complainant's claim that she had notified Irene Torres of her new address in April 1998. The commission therefore remanded the matter to the division for a hearing and determination as to whether or not the complainant had notified the division of her new address in April 1998 (or any time prior to June 3, 1998).

An administrative law judge for the division subsequently held a hearing on this issue on November 4, 1998. Thereafter, in a written determination issued on November 30, 1998, the ALJ found, largely on grounds of credibility, that the complainant had first notified the division on August 6, 1998, that her new address was 4122 32nd Ave., Kenosha, Wisconsin 53140.

The hearing record supports this determination by the ALJ. Among other things, the record indicates that when someone calls to give a change of address, Ms. Torres' normal practice is to write it down on a message pad with the date, the new address and case number, to ask the person to send notice of the change of address in writing in addition to taking it verbally over the telephone, and then later to enter the new address in the computer and make a note of the address change in the case file. The only notes in the case file of anyone at the Equal Rights Division receiving notice of the complainant's new address are ALJ Larry Jakubowski's summary of a telephone conversation he had with the complainant on August 6, 1998, what appears to be his note that same day on the file copy of the notice of hearing that the complainant has a new address, and below that, the note of Tammy Stoll, Irene Torres' coworker, stating, "Address change noted in computer 8/6/98."

A subpoena had been issued for the complainant's telephone records for the period from April 1, 1998 to June 3, 1998, but the complainant stated at the hearing that she did not keep her phone records. However, she also had not contacted the phone company to obtain her phone records for that period. Moreover, the record shows that the complainant was provided additional time after the hearing to obtain these records, but they had not been presented as of November 30, 1998.

Further, per the record, the envelope in which the division had mailed a Notice of Hearing (and other material) dated May 8, 1998, regarding the complainant's discrimination complaint to the complainant at her Sun Prairie address, indicates that the post office had forwarded the notice of hearing to the complainant at her new Kenosha address on or about May 11, 1998, with a notice to "NOTIFY SENDER OF NEW ADDRESS". The complainant, who admits that she received this notice of hearing, maintains that this did not cause her to wonder about her change of address. As noted by the ALJ, if the complainant had provided the division notice of her new address in April, a question arises as to why she would not have thought to send the division confirmation of her new address after receiving mail from the division addressed to her old address. It is also interesting to note that the ALJ's certified letter indicates that it was forwarded to the complainant in Kenosha but never picked up, and that the ALJ's July 14, 1998 dismissal decision was not returned to the division as undelivered.

In addition to all of the above, a question was raised about the complainant's general credibility because she had falsely stated on her 1996 employment application with the respondent that she had not been convicted of a felony or misdemeanor, when in fact she had been convicted of six crimes, at least two of which involved dishonesty, within the seven years immediately prior to the time she had filled out this application.

Based upon the above, the commission finds that ALJ Larry Jakubowski's July 14, 1998 decision was mailed to the complainant's last known address and that she failed to file a petition for review of that decision within 21 days of the date of that decision. In the absence of a timely filed petition for review of ALJ Jakubowski's decision, the Labor and Industry Review Commission is without authority to review his decision, and therefore issues the following:

DECISION

The complainant's petition for review is dismissed.

Dated and mailed: December 17, 1998
maxeymi.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc:
NATALIE M. KING


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Footnotes:

(1)( Back ) It is not known when the complainant had retained an attorney as there is no notice in the case file that she had ever retained an attorney.

(2)( Back ) Chapter DWD 218 previously existed as Chapter ILHR 218. Chapter ILHR 218 was renumbered Chapter DWD 218 under s. 13.93(2m)(b)1., and corrections made under s. 13.93(2m)(b)6. and 7., Stats., Register, November, 1997, No. 503.