SHEREEN M FITZGERALD, Complainant

FAMILY DOLLAR, Respondent

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

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, 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 April 30, 2004
fitzgsh . rsd : 110 :  

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In her petition for review, the complainant asserted that she did not appear at the hearing because she did not receive the Notice of Hearing. In a response to the petition for review, the respondent argued that if the complainant did indeed fail to receive the Notice of Hearing, it was because she had failed to keep the ERD informed of her current address. The commission finds the respondent's argument persuasive.

When she filed her complaint in this matter in January, 2003, the complainant provided the ERD with an address in Eagle River. She was clearly still at this address in August, 2003, when the Initial Determination was mailed to her at this address, as she promptly appealed it. The Certification to Hearing form was then mailed to her at that address on August 19, 2003, and there is no indication in the file that it was returned by the Post Office, so presumably she was still receiving mail at that address at that time. The Notice of Hearing was issued on November 11, 2003, setting the matter for hearing on February 10, 2004. A copy was mailed to the complainant at her Eagle River address. At that time, the complainant had not notified the ERD that she had moved or had a different address. Thus, the Notice of Hearing was properly mailed to the last known address of the complainant.

If a complainant fails to appear at the hearing on their complaint, dismissal of the complaint is appropriate unless the complainant can show "good cause" for their failure to appear. See, Wis. Admin. Code § DWD 218.18(4).

It has long been established that a complainant has an obligation to keep the ERD informed of his or her address and to inform the ERD of any moves to a different address. See, e.g., Pechacek v. J. C. Penney Company (LIRC, Nov. 10, 1989). Complainants are made aware of this obligation by a prominent warning on the ERD complaint form. Noting that a party has an obligation to keep the ERD informed of his or her address, the commission has held that failure to do so will prevent a finding of good cause for non-appearance at hearing based on an assertion that the notice of hearing was not received. Pechacek v. J. C. Penney, supra; Moses v. Northshore Healthcare Center (LIRC, June 6, 1991); AbuDooh v. Menards (LIRC, Jan. 28, 2000). "A party cannot be allowed to create `good cause' for failure to appear at a hearing by moving without notifying the [Equal Rights] Division of the party's new address and thus avoiding the Notice of Hearing." Moses v. Northshore, supra.

The complainant here moved and did not inform the ERD of her new address. She conceded as much in her letter replying to the response to her petition for review, in which she stated, "I did not contact Equal Rights about my address change because I did change my address with the Post Office." However, merely putting in a forwarding order with the Post Office does not satisfy the obligation to notify the ERD directly of an address change so that the ERD can change its records and send correspondence directly.

The commission also considers it relevant, that the complainant received other information that would have put her on notice that the hearing was pending and prompted her, at the very least, to contact the ERD. On January 5, 2004, the respondent's attorney filed a Notice of Appearance with the ERD, serving a copy thereof on the complainant at her Eagle River address by certified mail. The respondent subsequently received back the certified mail proof of delivery card, which showed that the item had been delivered to and received by the complainant at her Land O' Lakes address. The respondent then used that address (as well as her previous address) when it mailed the complainant its witness and exhibit disclosure, on January 30, 2004. The cover letter sent with this disclosure contained on its first page a reference to "the hearing scheduled to be held in the above-referenced matter on February 10, 2004". This was mailed to the complainant, at her Land O' Lakes address, on January 30, 2004, and presumably would have been received by the complainant before February 10.

The commission has taken into account, in failure to appear cases, that the non- appearing party was mailed and presumably received the pre-hearing witness and exhibit disclosure of the other party, which would have alerted them to the impending hearing. In Feaster v. Dillingham Construction (LIRC, Jun. 29, 1990), the respondent had served the complainant (by bonded courier) with a copy of its pre-hearing witness and exhibit disclosure more than 10 days prior to the hearing, along with a transmittal letter referencing the "upcoming" hearing. The commission concluded that even if it were the case that the complainant did not receive the notice of hearing, she had constructive notice that the hearing was scheduled and upcoming. The commission said, "[h]aving constructive notice of the scheduled hearing, it was not unreasonable to expect her to have contacted the Department, whereupon she would have been specifically advised about the scheduled hearing on her complaint". Similarly, in Young v. Leach (LIRC, Dec. 18, 1990), the complainant asserted that he had never received the notice of hearing, but the commission noted that he had been mailed the witness and exhibit disclosure of the respondent, which would have alerted him to the fact that a hearing in the matter would be held shortly, thus providing him constructive notice of the hearing.

For all of the foregoing reasons, the commission concludes that the employee did not establish that she had "good cause" for her failure to appear at the hearing. Dismissal of her complaint was therefore appropriate.

cc: Stephen L. Knowles, Attorney for Respondent

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