GEORGE L. PETERSON, JR., Complainant

K-MART, Respondent

On April 26, 1991, an Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter ordering the dismissal of the Complainant's complaint. The dismissal was based on Complainant's failure to respond to a certified letter which was mailed to his last-known address and requested that he contact the Equal Rights Division. Subsequently, in a letter dated April 29 and received by the Department on May 3, 1991, the Complainant objected to the dismissal of his complaint. Said letter has been deemed to be a petition for Commission review of the matter.

Based upon a review of the matter, the Labor and Industry Review Commission hereby issues the following:

ORDER

The Administrative Law Judge's Order is set aside and the matter is remanded to the Equal Rights Division for a hearing and determination as to whether Complainant had good cause for his failure to respond to the Department's correspondence. If good cause is established, the Division shall schedule the matter for a probable cause hearing on the Complainant's complaint of alleged handicap discrimination against Respondent.

Dated and mailed May 24, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The Commission has remanded this matter to the Department for a hearing and determination on whether Complainant had good cause for his failure to respond to the Department's certified letter based on his written correspondence sent to the Department following the dismissal of his complaint. In his letter dated April 29, 1991, the Complainant asserted that he had never received the certified letter sent by the ALJ and enclosed what was purportedly a signed statement from the Bryant, Wisconsin, Postmaster stating that the Bryant, Wisconsin, Post Office had not received a certified letter for Complainant.

In response, the ALJ advised Complainant in a letter dated May 7, that the Department's file showed the certified letter had been delivered to his address on April 4, 1991, and that Beatrice Price had signed for the letter. However, on May 9, 1991, the Complainant sent a second letter to the Department, again denying receipt of the certified letter, and this time enclosing an affidavit in which he states that no such person by the name of Beatrice Price has been present at his address at N4315 Deertrail Drive, and that the persons residing at this address are George L. Peterson, Sr., and Joan R. Peterson.

Although there appears to be some question regarding the validity of the purported statement from the Bryant Postmaster (the case file shows a Bryant, Wisconsin, postmark of April 4 on the Department's return receipt for the certified mail sent Complainant), the Commission finds that further inquiry is warranted in view of Complainant's May 9 affidavit and his continued assertion that he has never received the Department's certified letter.

cc: Jeffrey J. Reitmyer

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