DARRELL O DODSON, Complainant

HENKEL SURFACE TECHNOLOGIES, Respondent

Darrell Dodson failed to respond within 20 days to correspondence from the Department's Equal Rights Division sent by certified mail to him on January 26, 2009, and the ERD dismissed his complaint. In his letter appealing the department's February 19, 2009 order dismissing his complaint, after stating that he had filled out a lot of papers for this case Dodson asserted that "I don't understand why a certified letter was not receive[d], but a regular letter was."

In a decision issued on April 24, 2009, an administrative law (ALJ) for the ERD concluded that nothing in Dodson's appeal provided a basis for re-opening this case. The ALJ noted that Wis. Stat. § 111.39(3) makes the dismissal of a case mandatory where the complainant fails to respond to a certified letter from the department within twenty days, and therefore dismissed Dodson's complaint. Dodson filed a petition for commission review. In his petition, after noting that he had received a letter stating that his case had been re-assigned, Dodson then asserted that "Now another letter has come...stating that I didn't answer within 20 days."

The department's January 26, 2009 certified letter sent to Dodson appears in the case file. The Post Office returned it to the ERD with a note stating that it was unclaimed. There are several dates on the certified letter which show through the note that the Post Office attached to the certified letter. They are "Jan 27 2009", "2/9" and "2/12".

To better understand Dodson's assertions in this matter the commission sent a letter to Mr. Dodson on June 5, 2009, which requested that he provide an explanation as to why he did not claim the Division's certified mail. On June 12, 2009, the commission received a written response from Dodson which states, in pertinent part, as follows:

If, I knew who to put the blame on, I would. I never received any notice of a certified letter from anyone and nobody.

Dodson's response makes clear that it is his contention that he never received notice of a certified letter from the department. In Corey J. Wilson v. LIRC and New Horizon Center, Case No. 01CV006492 (Milw. Cir. Ct., Jan. 11, 2002), the court, citing Patterson v. Board of Regents of the University of Wisconsin, 103 Wis. 2d 358, 309 N.W.2d 3 (Ct. App. 1981), it was noted that the primary purposes behind the requirement of certified mail are to ensure delivery and to easily determine date of delivery. The commission has held that due process considerations require that a complainant receive a hearing where the complainant claims to have not received notice of the department's certified mail. McGee v. County of Milwaukee (08/18/06).

Accordingly, the Labor and Industry Review Commission therefore issues the following:

The decision of the administrative law judge is set aside. This matter is remanded to the Equal Rights Division for a hearing and determination on Dodson's claim that he never received notice of the department's certified mail, and, further proceedings on his complaint of discrimination should his claim be found to be credible.

Dated and mailed June 26, 2009
dodsoda . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Robert C. McNamee

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uploaded 2009/06/29