JOSHUA SIMON #323185, Complainant

KARAKAHL INN, Respondent

On September 20, 2001, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an order dismissing the complainant's complaint on the ground that he had failed to respond within 20 days to a certified letter from the division mailed to his last known address. A timely petition for review was filed.

Based upon a review of the file in this matter, the Labor and Industry Review Commission has determined, for the reasons stated in the attached memorandum opinion, that the decision of the ALJ must be set aside and this matter remanded for further proceedings. Accordingly, the commission hereby issues the following:

The September 20, 2001 order of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed November 30, 2001
simonjo . rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

After receiving word from the complainant's attorney that the complainant was incarcerated an administrative law judge for the Equal Rights Division issued an order on January 14, 1998, placing the complainant's case in abeyance until such time that he was able to proceed with his complaint. Correspondence from the complainant's attorney stated that the complainant had not yet been assigned to an institution for the term of his sentence.

On August 7, 2001, the Equal Rights Division sent a certified letter to the complainant in care of his attorney, noting that the division had held the case in abeyance status for an extended period of time. The letter stated that if the case had been resolved it should be signed at the bottom, and that if the complainant wanted it to remain open a written request should be sent explaining the status of the case and the reason for requesting that it remain open. The letter also stated that if the division did not receive a response within 20 days from the date of the letter that it would be dismissed.

Apparently a day or so later, the husband of the complainant's attorney advised the division that the complainant's attorney was deceased and gave an address for the complainant at the Dodge Correctional Institution in Waupun, Wisconsin.

On August 10, 2001, the division sent a certified letter to the complainant at the Dodge Correctional Institution. This letter was worded exactly the same as the August 7, 2001 certified letter, including the notice that if the division did not receive a response within 20 days from the date of the letter that it would be dismissed.

The mailing receipt for the August 10, certified letter shows that it was addressed to the complainant at Dodge Correctional Institution, that it was delivered on August 11, and that someone (not the complainant) signed for the letter.

The case file also contains a second mailing receipt for a certified letter. This mailing receipt shows that a certified letter was sent to the complainant at a post office box number in Fox Lake, Wisconsin, in care of "F.L.C.I." (Fox Lake Correctional Institution.) (In all probability, someone at the Dodge Correctional Institution resent the division's letter by certified mail to the complainant at the Fox Lake Correctional Institution.) The second mailing receipt shows a delivery date of August 14, 2001, that someone signed for it as "agent" and that it was stamped as received by the division on August 15, 2001.

On September 20, 2001, the ALJ issued a decision in which she noted that the division had not received any response to its correspondence as of September 20, 2001. The ALJ therefore issued an order dismissing the complainant's complaint pursuant to Wis. Stat. § 111.39(3).

In his petition for review, the complainant notes that he is at Fox Lake, not Dodge Correctional Institution, and he asserts that he never received the August 10 certified letter.

Wis. Stat. § 111.39(3), states as follows:

"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."

The statute speaks of correspondence from the department, that the correspondence be by certified mail and that it be sent to the last known address of the person.

The August 10, 2001 correspondence appears to be the only certified mail from the department. However, in view of the second mailing receipt for certified mail that is stamped received by the division on August 15, 2001, and which shows a Fox Lake address for the complainant, a question arises as to whether the Dodge Correctional Institution can properly be viewed as the department's last known address for the complainant. The commission concludes that the mailing receipt for certified mail addressed to the complainant at the Fox Lake Correctional Institution should have prompted the department to question whether the complainant's address continued to be at the Dodge Correctional Institution. The commission also notes that August 15, 2001, is only 5 days after the department sent its August 10, 2001, certified letter to the complainant. Thus, the 20-day period that a person is allowed to respond to department correspondence had not expired when the department received information regarding a new address for the complainant.

Finally, while it may also be said that a complainant has the responsibility to keep the department informed of any address changes, in this case the complainant was represented by an attorney who was keeping the department apprised of his address. Unfortunately, however, the complainant's attorney passed away. It is not known when her death occurred. Further, there is no evidence that the complainant was aware of his attorney's death.

Under the circumstances presented here, the commission finds that the order dismissing the complainant's complaint must be set aside and this matter remanded for further proceedings.

cc: 
Richard A. Hipenbecker
Susan Nicoly

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uploaded 2001/12/06