DARRELL MOSES, Complainant

NORTHSHORE HEALTH CARE CENTER, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 30, 1991. Complainant filed a timely petition for review by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed June 6, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

This case has a lengthy and complex procedural history. Scheduled hearings were twice postponed, on both occasions because (at least in part) Complainant had been incarcerated. In early 1989, after the second hearing postponement, the matter was placed into abeyance because of an indication that Complainant would be incarcerated at least until his permissive release date of July 1990 and possibly until his mandatory release date of November 1990. In February 1991, Complainant's then attorney filed with the Division a form signed by both himself and the Complainant indicating that he was no longer representing the Complainant, and in a cover letter the attorney also indicated that all future correspondence in the matter should be sent directly to the Complainant at the address of the Salvation Army in Milwaukee, which he provided.

Ultimately, it is only this last development in the procedural history of the case that has significance to the matter of the Complainant's failure to appear at the April 30, 1991 hearing. Regardless of what happened before, after February 1991, the Complainant was unrepresented by counsel, and his last-known address was that of the Salvation Army in Milwaukee. The Notice of Hearing was subsequently sent to Complainant at that address.

In the petition for review, Complainant's lay representative argues that Complainant did not receive the Notice of Hearing, and did not appear at the hearing, because he had been arrested on March 12, 1991 and was confined at a federal prison in Louisburg, Pennsyvania until May 18, 1991. Under the circumstances presented here, the Commission does not consider that this establishes good cause for the Complainant's failure to appear at the hearing. In effect, this case is no different from one in which a party moves without notifying the Division of the party's new address, and then fails to appear at the hearing (or to notify the Division of inability to attend) because of failure to receive the Notice of Hearing. A party has an obligation to keep the Division informed of the party's address. In effect, with the Complainant's arrest on March 12, 1991, he "moved." His new address was at a federal prison in Louisburg, Pennsylvania. Complainant could have, and should have, corresponded with the Equal Rights Division after his arrest to indicate that the Milwaukee Salvation Army address was no longer current for him and that he could be reached by mail at the prison in which he was incarcerated. Had he done so, the Equal Rights Division would have been able to provide him with a copy of the Notice of Hearing. A party cannot be allowed to create "good cause" for failure to appear at a hearing by moving without notifying the Division of the party's new address and thus avoiding the Notice of Hearing.

It is also asserted on behalf of Complainant, that in April 1991 the Complainant's mother brought the Complainant's representative an envelope received from the Equal Rights Division which contained a copy of the original charge of discrimination along with a copy of "The Wisconsin Fair Labor Law" but with no mention of the hearing having been scheduled. The commission considers this assertion to be irrelevant. There is no indication of when the envelope was received by the Complainant's mother, or at what address it was received. Furthermore, the commission is not inclined on the basis of this secondhand representation to discount the possibility that the Complainant's mother either misplaced certain documents or was bringing to the Complainant's representative materials received from the Division at an earlier stage of this case. In any event, these facts would be immaterial because it remains the case that notice of hearing was mailed to Complainant at his last-known address but not received by him because he was no longer at that address and had not notified the Division of where he could be reached.

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