PAMELA R MAXWELL, Complainant
ARAMARK EDUCATIONAL SERVICES LLC
(ARAMARK FOODS), 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 conclusions in that decision as its own, except that it makes the following modifications:
In the first full paragraph on page 2 of the decision, in the second sentence of the bracketed section, a comma is inserted after the words "a cell phone number."
That part of the analysis beginning with the first full paragraph on page 4 of the decision and continuing through the second full paragraph on page 5 of the decision is deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed November 30, 2010
maxwepa . rmd : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In her charge, the complainant provided a mailing address of 482 South Pine Street in Burlington, Wisconsin; and, as her contact person, her mother Dorthy Maxwell at 2121 North Second Street in Milwaukee. In her charge, the complainant also provided an email address, a home telephone number, and a cellular telephone number.
On January 5, 2010, the respondent filed a response to the charge.
In a letter dated April 27, and mailed on April 28 to complainant at the Pine Street address in Burlington, an ERD investigator requested that the complainant provide a written response to the respondent's January 5 response within 20 days. This letter was returned to ERD on June 8 with a notation on the envelope that "undeliverable as addressed/no forwarding order on file."
By certified letter dated and mailed on May 25 to complainant at the Pine Street address in Burlington, an ERD investigator stated as follows, as relevant here:
Attempts to obtain information from you have been unsuccessful. It is necessary for you to cooperate in the investigation of your complaint. This will be your last opportunity to provide the information requested in my letter dated April 27, 2010.
If you do not respond within 20 days of the date of this letter, your complaint will be dismissed by the Equal Rights Division....
An individual signed for this certified letter at the Pine Street address on May 26. This individual signed her name and then printed it below her signature. The name provided is "Candy Kuchl."
In a June 11 email to the complainant at the email address she had provided in her charge, the ERD investigator wrote as follows, as relevant here:
I am writing to you regarding your discrimination complaint against Aramark Food Services filed in November of 2009 with our office.
My recent attempts to reach you by regular mail (April and May 2010) and by phone (June 2010) have been unsuccessful. Please provide an address where I can mail you information related to your discrimination complaint.
If you wish the investigation to proceed, please respond to this e-mail by June 22, 2010, with your contact information or call me at (414) 227-4148.
On June 21, the certified letter was returned to ERD. On the envelope was written "return to sender," and "She doesn't live here any more."
On June 24, ERD issued an order dismissing the complainant's charge for her failure to respond to a certified letter within the specified time.
The ERD investigator's handwritten record of contacts with the parties, included in the case file, states as follows:
1/5/10 Rec. R's position statement
4/27 Assigned to R. Sidhu
5/25/10 Sent certified letter to C for her rebuttal
6/8/10 ERD correspondence to C returned (undeliverable)
6/11/10 C's contact person doesn't know where C is. C's home phone disconnected; cell phone voicemail is full, and no answer at work phone. Sent C e-mail. See file
6/23/10 No response from C. Issued notice of Dismissal. Sent C's notice to her mother's address (2121 No 2nd St Mke, WI 53212)
On July 9, ERD received a letter from the complainant appealing the dismissal of her charge of discrimination. In this letter, dated July 8, the complainant states that the basis for her appeal is the fact that she never received/signed for the certified letter, and only learned of it after the fact. In this appeal, the complainant apologizes for "not getting my new address to you," and provides her mother's 2121 North Second Street, Milwaukee, address as her return address.
The complainant corresponded with ERD again by letter dated July 18. In this letter, the complainant stated the 2121 North Second Street address in Milwaukee as her return address.
ERD mailed its August 22 response to this July 18 correspondence to the complainant at 2000 Dekoven Avenue in Racine.
The complainant's appeal was assigned to ALJ Lawent. In his September 28 decision, he held that the complainant's failure to respond to the May 25 certified letter from ERD justified the dismissal of her charge.
By letter dated October 8, and setting forth the Dekoven Avenue address as her return address, the complainant appealed the ALJ's decision. In her appeal, the complainant states as follows, as relevant here:
...I apologize for the delay in response to the e-mail and the certified letter. I did explain some time back for the non-compliance to the letter and mail. I called the Division, and gave them the address to where I was: 430 Kimberly Dr Waukesha Wis. This was after I learn[ed] that there was a certified letter sent. Also I gave them 2121 No 2nd St. Mil and 2000 Dekoven Ave Racine Wis. Truthfully, I didn't know about the email. Also the letter they sent once again on the 25th of May they sent it to 482 Pine St where they knew I did not reside. It wasn't that I didn't want to respond. I didn't know.
Wisconsin Statutes § 111.39(3), states as follows:
(3) 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.
In Palmer v. Wisconsin Public Service Corp., ERD Case No. CR200201890 (LIRC July 30, 2003) and Frederick v. Initial Security, ERD Case No. CR200202997 (LIRC Aug. 28, 2003), the commission held that in order to warrant dismissal of a complaint under Wis. Stat. § 111.39(3), "correspondence from the department concerning the complaint" must be understood to mean correspondence which poses some sort of question and informs the complainant that a response is required, and that it must be purposeful correspondence, i.e., assist the department in obtaining information that it actually needs to process and decide cases.
The request made by ERD in its May 25 certified letter, which incorporated the request made to the complainant on April 27, i.e., that the complainant provide information to the investigator related to the substance of her charge of discrimination, fulfills the requirements of Palmer and Frederick in that it not only informed the complainant that a response was required, but also requested information needed by ERD to process and decide the complainant's charge. See, Simon v. Emmpak Foods, ERD Case No. CR200403862 (LIRC May 16, 2005)(request that complainant respond to information provided by respondent during investigation purposeful within meaning of Palmer and Frederick).
The commission and the courts have also held that, in certain circumstances, considerations of due process require that a complainant receive a hearing on his/her assertion that notice of the department's certified mail was never received. See, Peterson v. K-Mart, ERD Case No. 9000431 (LIRC May 24, 1991); McGee v. County of Milwaukee, ERD Case No. CR200503166 (LIRC Aug. 18, 2006); Bailey v. Target Stores, ERD Case No. CR200703486 (LIRC Oct. 22, 2010); Wilson v. LIRC and New Horizon Center, Inc., Case No. 01CV006492 (Wis. Cir. Ct. Milwaukee Co., Jan. 11, 2002).
In Peterson, the complainant asserted that he had never received either the certified letter, or notice that a certified letter had been mailed to the address at which he was residing and delivery of the letter attempted there; and the name of the individual who had signed for the letter was unfamiliar to him and no one with that name resided at this address. Based upon this assertion, the commission remanded the case to ERD for hearing.
In McGee, the complainant asserted that she had not received the certified letter, and was not aware that delivery of the letter had been attempted at the address at which she was residing before being returned to ERD. Based upon this assertion, the commission remanded the case to ERD for hearing.
In Bailey, the complainant asserted that he had not received the certified letter, and was not aware that delivery of the letter had been attempted at the address at which he was residing before being returned to ERD. Based upon this assertion, the commission remanded the case to ERD for hearing.
In Wilson, the complainant asserted that he had not received the certified letter, and was not aware that delivery of the letter had been attempted at the address at which he was residing before being returned to ERD. Based upon this assertion, the circuit court reversed the commission's dismissal of the complainant's charge. In Wilson, the court stated:
If the legislature requires the use of certified mail to ensure delivery, then the intent of sec. 111.39(3), Stats., was clearly frustrated in the case at bar. As long as the petitioner still lives at 4751 N. 19th St. in Milwaukee, Wisconsin, which it is apparent from his submissions to the Commission and the Court that he does, the purposes of section 111.39(3), Stats. is frustrated when a certified letter with the correct address is not delivered to that address.
The facts under consideration here are distinguishable. One of the common threads in Peterson, McGee, Bailey, and Wilson is that the complainant was residing at the address to which ERD mailed the certified letter. Here, however, the complainant concedes that she was not residing at the address to which the May 25 certified letter was mailed even though this was her address of record with ERD at the time.
Another basis for commission remand in a case dismissed by ERD pursuant to Wis. Stat. § 111.39(3) relied upon the fact that ERD had reason to be aware during the 20-day period that the complainant was not residing at the address to which the certified letter had been mailed.
In Simon v. Karakahl Inn, ERD Case No. 199601057 (LIRC Nov. 30, 2001), ERD had reason to be aware during the 20-day period that the complainant had been transferred from Dodge Correctional Institution, the address to which the certified letter had been mailed, to Fox Lake Correctional Institution, and the commission relied upon this as one factor justifying remand in that case.
Here, however, none of the available information states or even reasonably implies that ERD would have had any reason to be aware, between May 25 and June 14, 2010, the 20-day period at issue, that the complainant was no longer residing at the address which she had provided ERD in her charge of discrimination, i.e., 482 South Pine Street in Burlington, Wisconsin.
Finally, it would have been arguable, if the complainant had received and relied upon the June 11 email, that the 20-day deadline set forth in the certified letter had been nullified or at least modified. However, the complainant concedes in correspondence to the commission that she did not know about the email.
As the commission has recognized, it is a party's responsibility to keep ERD apprised of his/her current address. The complainant failed to fulfill that responsibility here, and it was this failure that prevented her from receiving ERD's requests for information and resulted in the dismissal of her case.
cc: Rosemary Maimone, HR Director
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