LAURA ANN SHIDELL, Complainant
SEARS PORTRAIT STUDIO, Respondent A
CONSUMER PRODUCTION INC., Respondent B
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 by the Respondent, in which it asserted that it had good cause for its failure to appear at the hearing held in this matter on July 21, 2004.
The commission has considered the petition, and it has reviewed the file in this matter. Based on its review, the commission now makes the following:
The October 22, 2004, decision of the ALJ in this matter is set aside.
This matter is remanded to the Equal Rights Division for further hearing, before the same ALJ, on the following issues:
What is the proper party respondent(s) to this action.
Whether the respondent had good cause for its failure to appear at the noticed hearing.
If the ALJ decides after considering the evidence presented on such issues that the respondent did not have good cause for its failure to appear at the hearing in this matter, she shall re-issue her original decision as her final decision in the matter.
If the ALJ decides after considering the evidence presented on such issues that the respondent did have good cause for its failure to appear at the hearing in this matter, she shall conduct further hearing to allow the respondent to present its case and to allow the complainant to present rebuttal evidence in response to the respondent's case, and she shall then issue a new decision based on all the evidence, including the evidence received at the first hearing held on July 21, 2004.
The ALJ may, in her discretion, either conduct a further hearing on the merits on a provisional basis in conjunction with and at the same time as the hearing on the issue of good cause for failure to appear at hearing, or she may hold a separate hearing on the issue of good cause for failure to appear at hearing and then schedule and conduct further hearing on the merits at a later time if she is persuaded that the respondent had good cause for its failure to appear at hearing.
Dated and mailed August 30, 2005
shidela . rpr : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
In a letter dated September 22, 2003, ERO Grandberry advised the complainant to complete the "Respondent Information" section of the complaint. The complainant provided this information to ERD on September 25, 2003, naming the respondents as Sears Portrait Studio and Consumer Production, Inc., and providing an address of 43 East Towne Mall for both.
On or around October 24, 2003, ERO Phelan mailed a copy of the charge to the named respondents at the address provided by the complainant. In a letter to the respondents mailed on October 28, 2003, (1) ERO Phelan requested that certain information be provided within 30 days. When ERO Phelan did not receive a response to this letter, he sent a certified letter to the named respondents on January 20, 2004, advising that, if he did not receive the requested information on or before January 30, 2004, he would issue his Initial Determination without it. The return receipt indicates that this certified letter was received at the 43 East Towne Mall address by an individual named A. Havey.
ERO Phelan did not receive any information from the respondents and accordingly issued his Initial Determination of probable cause on March 25, 2004.
A notice that hearing would be held on the complainant's charge on July 21, 2004, was issued by ERD on April 14, 2004. The named respondents did not appear, so only the evidence offered by the complainant became a part of the hearing record.
ALJ Cohn issued her decision on October 22, 2004, concluding that the complainant had been discriminated against as alleged.
In its timely petition to the commission, Consumer Programs Incorporated (CPI) acknowledges that ALJ Cohn's decision, which was mailed to the named respondents at the 43 East Towne Mall address, was forwarded to CPI's corporate offices in St. Louis, Missouri, and was received there on November 1, 2004.
It should first be noted that, although, in its petition, CPI represents that, on May 2, 2005, the complainant filed an amended complaint with EEOC and the ERD naming Sears East Towne and CPI Corporation (2) as respondents, the file in this matter does not indicate that such an amended complaint was received by ERD. The copy of the amendment attached to the respondent's petition is prepared on an ERD form and states it was provided to the FEPA (ERD) and to the EEOC, but does not contain an ERD date stamp and does not appear in the file.
The amendment, if it had been filed with ERD, arising as it does from the same transaction or set of facts as the original charge, would be cognizable as a proper amendment, not as a new charge, as argued by the respondent. Its substance would not, as the respondent argues, merit additional investigation. However, the timing of the filing of the amendment, more than six months after the ALJ's decision was issued, could be problematical, particularly given the respondent's representation that the complainant had reason, during her employment, to be aware of the identity of her employer. It is not clear, however, that, even if the amendment had been filed with ERD, it would make any difference since it is undisputed that, in her original charge, the complainant identified the respondent by a name similar to its actual name as well as by the initials it commonly uses to identify itself. Under similar circumstances, in the absence of a showing of actual prejudice to the respondent, both ERD and the commission have simply corrected the name of the respondent party as a matter of administrative discretion.
What the respondent appears to actually be contending here is that the complainant's failure, in her original charge, to accurately name the proper respondent party, i.e., Consumer Programs Incorporated d/b/a Sears Portrait Studio instead of Consumer Production Incorporated and Sears Portrait Studio, and to provide the address of the respondent's corporate offices, deprived the respondent of the opportunity to respond to the charge and to participate in the hearing.
The respondent would have to show that it was prejudiced by the complainant's inaccurate statement of its name or use of the address of one of its business locations rather than its corporate offices, or otherwise show good cause for its failure to appear at the noticed hearing. In the commission's opinion, the respondent's position in this regard is at least arguable and, as a result, it should be provided an opportunity to make this showing. See, e.g., Whitlow v. Air Trans Airways, ERD Case No. CR200203151 (LIRC Dec. 13, 2004); Zollicoffer v. Ryder Student Transportation Services, ERD Case No. 199803151 (LIRC Aug. 25, 2000).
It should be noted that the respondent, relying upon information not in the hearing record, also argued the merits of the complaint to the commission. Obviously, the commission may only consider the evidence of record which, despite the complainant's poor recall of dates and details, supports the ALJ's decision.
cc:
Attorney Allison Taylor
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