ROBYN KAYE ROLLINS, Complainant
OLYMPIC FAMILY RESTAURANT, Respondent
Background
On April 14, 2004, the Equal Rights Division mailed a notice of hearing to the parties stating that a hearing would be held at 9 a.m. on July 26, 2004, to determine whether the respondent violated the Wisconsin Fair Employment Law by terminating the complainant's employment because of disability. The notice of hearing was mailed to the complainant at 1518 North 10th Street in Sheboygan, Wisconsin.
On June 16, 2004, an administrative law judge (ALJ) for the Equal Rights Division sent certified mail to the complainant at the above-stated address. The ALJ stated in this certified mail that it was his understanding that on or around May 21, 2004, the complainant had contacted the ERD regarding whether or not she had to attend the hearing scheduled for July 26. The ALJ further stated that it was his understanding that the complainant was told she should make any request for a postponement in writing, but to date no written (postponement) request had been received. The ALJ advised the complainant that the hearing currently remained scheduled for July 26.
The ALJ also advised the complainant that pursuant to Wis. Stat. § 111.39(3), his letter was being sent to notify her that she must contact him verbally or in writing regarding her intent to appear and proceed with this case. The ALJ advised her that he must receive written contact within 20 calendar days of his letter, or alternatively she could contact him by calling his office and leaving a message on the voice mail within 20 calendar days of the letter. The ALJ further advised the complainant that if she did not contact him within 20 calendar days of his letter, her case would be dismissed with prejudice for failure to respond pursuant to Wis. Stat. § 111.39(3).
Wisconsin Statute section 111.39(3) 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."
On June 28, 2004, the ALJ's June 16 certified mail sent to the complainant was returned by the Post Office to the ERD stamped "Moved Left No Address".
On July 9, 2004, the ALJ issued a decision stating that the July 26 hearing was now cancelled, and ordering the dismissal of the complainant's complaint with prejudice. This decision was also mailed to the complainant at the 1518 North 10th Street address. As reason for the July 9 decision, the ALJ stated that correspondence dated June 16 was mailed to the complainant by certified mail to what appeared to be her last known address, that it was returned (by the Post Office stamped) "Moved Left No Address", and that the complainant had not otherwise contacted him within 20 calendar days of his June 16 correspondence.
A notice of appeal rights enclosure attached to the ALJ's decision informed the complainant that in order to obtain a review of the ALJ's decision by the commission, a written petition "must be received" (emphasis in original) by the ERD within 21 days from the date of the ALJ's decision, or the decision will become final.
The ALJ's copy of the July 9, 2004 decision could not be delivered by the Post Office and was returned to the ERD on July 16, 2004, with a notice stating "Moved Left No Address Unable To Forward Return To Sender".
A note in the case file indicates that on July 27 the ALJ received a voice mail from the complainant "giving some reason as to why she didn't make the hearing." This note further indicates that based upon a return call to the telephone number the complainant left in her voice mail message, the ERD learned that her new address was 4331 Morningview Court, Apt L201, Sheboygan, WI 53081.
The case file also shows that on the appeal rights enclosure attached to the ALJ's July 9 decision the Post Office returned on July 16, there is a note indicating that on July 27 the ERD re-mailed to the complainant's new address on Morningview Court a copy of the ALJ's July 9 decision. Also appearing on the appeal rights enclosure is the statement: "Pls follow instructions if you want to appeal. Appeal is due 7-30-04". (Emphasis in original.)
On August 18, 2004, the Division sent the parties written notice that the case had been closed by the Division because a timely petition for review had not been received.
The Division subsequently received a letter from the complainant on August 23. The complainant's letter reads in relevant part as follows:
".I called on Monday July 25, 2004 (sic) to let you know that I couldn't make the court appointment in Neillsville, WI on the 26th of July do (sic) to the fact that my dad having (sic) a heart attack over that weekend, and I had asked for a change of date for the court, but all I've received was this letter stating that this case has been closed, I wish for it to be reopened."
Discussion
The commission concludes that the complainant's petition for review must be dismissed.
First of all, it is apparent that the complainant still resided at 1518 North 10th Street in Sheboygan when the ERD mailed her the notice of hearing on April 14, 2004, and that she received the notice of hearing. This is apparent because there is no evidence in the case file of the notice of hearing being returned to the ERD by the Post Office and because according to the ALJ's June 16 correspondence the complainant had contacted the ERD on or about May 21 inquiring whether or not she had to attend the hearing. Second, it is apparent that the complainant failed to keep the ERD apprised of her address change. There is nothing in the case file that indicates she had notified the ERD before June 16, 2004, that her address had changed from 1518 North 10th Street. In fact the case file indicates that the ERD first learned of the complainant's new address on July 27, 2004. Third, in view of the ALJ's statement in his June 16 correspondence by certified mail that it was his understanding the complainant had contacted the Division to inquire if she had to attend the scheduled hearing and was told to make any request for a postponement in writing but no such request had yet been received, it is evident that the ALJ's June 16 correspondence was purposeful and posed a question the department needed to have answered. Palmer v. Wisconsin Public Service Corp. (LIRC, 07/30/03); Frederick v. Initial Security (LIRC, 08/28/03). Fourth, in her petition the complainant asserts that she "called on Monday July 25, 2004 to let you know that I couldn't make the court appointment in Neillsville on the 26th of July." However, July 25 was not a Monday, it was a Sunday. The hearing was scheduled for Monday, July 26. There is nothing in the case file that indicates the complainant had called the Division on July 26, but there is a memo in the case file regarding a call she made on July 27. Fifth, assuming for purposes of argument that the complainant's father had a heart attack on the weekend prior to the scheduled date of the hearing, the ALJ had already issued a decision dismissing her complaint on July 9 due to her failure to respond to correspondence sent by certified mail to her last known address.
This brings us to the complainant's failure to file a timely petition for review. Based on the original July 9 mailing date of the ALJ's decision dismissing the complainant's complaint, the complainant had until July 30, 2004, to file a timely petition of that decision. However, only three days before the final date on which a timely petition could be filed the ERD learned that the complainant had a new address and re-mailed a copy of the ALJ's decision to her new address. The Division responded properly by re-mailing a copy of the ALJ's July 9 decision to the complainant on July 27. The Division had already done what was required of it on July 9 when it mailed a copy of the ALJ's decision to the last known address of the complainant. There is no indication that the complainant attempted to get an appeal filed by July 30. In fact, the appeal she submitted after the Division re-mailed a copy of the ALJ's decision to her was not received by the Division until August 23, which was more than 21 days (27 to be exact) after the ALJ's decision was re-mailed on July 27.
Also, the complainant cannot properly claim before the commission that her petition was filed late because she was prejudiced because of exceptional delay in the receipt of the ALJ's decision as provided under Wis. Stat. § 111.39(5)(b). (1) By all indications, the delay the complainant experienced in receiving the ALJ's July 9 decision was caused by her failure to notify the ERD of her new address on Morningview Court.
The commission's authority is limited to review of written petitions received by the Division within 21 days after a copy of the ALJ's decision is mailed to the last known address of the parties. Wis. Stat. § 111.39(5); Wis. Admin. Code DWD § 218.21(2). The complainant's copy of the ALJ's decision was mailed to her last known address.
In the absence of a timely petition for review of the administrative law judge's decision, the Labor and Industry Review Commission has no authority to review the decision of the administrative law judge.
Moreover, even assuming for purposes of argument that the commission had the authority to review the decision of the administrative law judge, her complaint must be dismissed pursuant to Wis. Stat. § 111.39(3), due to her failure to respond within 20 days to correspondence from the department concerning her complaint that was sent by certified mail to her last known address.
Based upon the foregoing, the Labor and Industry Review Commission therefore issues the following:
The complainant's petition for review is dismissed.
Dated and mailed September 30, 2004
rolliro . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
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