Wis.LIRC ER Decision: Pate, Gerald - May 22, 1998 - Failure to respond to correspondence from the department

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GERALD PATE JR., Complainant

MILWAUKEE ATHLETIC CLUB, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700003

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an Order dismissing the complaint in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the materials in the file. Based on the applicable law and the records and file materials in this case, and for the reasons described with more particularity in the attached Memorandum Opinion, the commission makes the following:

ORDER

The "Order of Dismissal - Failure to Respond To Correspondence From The Department" issued on April 17, 1998 is set aside, and this matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed: May 22, 1998
pateger.rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On March 17, 1998, the Administrative Law Judge sent the Complainant, Gerald Pate Jr., a certified letter, asking him to contact him with an indication of whether he was still interested in pursuing the case. In this letter, the Administrative Law Judge invoked Wis. Stat. � 111.39(3) and explained that if he did not hear from the Complainant within twenty days from the date of the letter, the complaint would be dismissed.

This letter was sent to the Complainant at two different addresses. One, which was the address he had shown on his complaint form when he filed his complaint, was:

1509 E Kane Pl. #35
Milwaukee Wi 53202-1721

The other address to which a certified copy of the letter was sent on March 17, 1998, was:

P O Box 9248
Milwaukee WI 53202

On March 26, 1998, the Equal Rights Division received the copy of the letter which had been sent to Pate at the "P O Box 9248" address, back from the Post Office. It bore the notation "Return To Sender/No Such Number."

The twentieth day following the date of the March 17, 1998 letter was April 6, 1998. Pate did not contact the Equal Rights Division by that day. However, on that day the Equal Rights Division received the copy of the letter which had been sent to Pate at the "1509 E Kane Pl." address back from the Post Office. It bore the notations "Return To Sender" and "Unclaimed," and it also bore the handwritten indication:

"P O BOX 92484
53202"

On April 17, 1998, the Complainant telephoned the Equal Rights Division and informed a person there that his mailing address was P O Box 92484. Later on that same day, the Division mailed out an Order by the Administrative Law Judge dismissing the complaint pursuant to Wis. Stat. � 111.39(3), on the grounds that the Complainant had failed to respond within twenty days to a certified letter from the Division.

Wis. Stat. � 111.39(3) provides:

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.

(emphasis added).

Based on all of the materials in the file, it is now clear that the correspondence sent by certified mail to the Complainant on March 17, 1998 was sent to the wrong address for the Complainant. This does not necessarily mean that the order of dismissal cannot be sustained, since all that the statute requires is that such correspondence be sent to the last-known address for the Complainant. However, in order to be able to sustain such an order of dismissal, the commission must be able to determine that the essential condition of mailing to the last-known address was in fact met -- and in a case where there has been an error in an address, this requires looking at how the error arose.

The file discloses that this incorrect Post Office Box number first appeared in the Division's files around February 18 or 19, 1998. A letter sent to the Complainant at the "1509 E Kane Pl." address on January 23, 1998 had been returned to the ERD by the Post Office with the notation "Return To Sender/ Attempted Not Known," and the "Investigator's Log" discloses that on February 18, 1998, the Investigator telephoned the Complainant's then-attorney in order to obtain a current address for the Complainant. The log contains a pencilled indication that the attorney said he would call back with the information. The log also bears two separate notations written in ink, showing a Post Office Box number of "9248," presumably written when the attorney called back. (1 )

If the Complainant made a mistake when telling his attorney what the Post Office Box number was, or if the Complainant's attorney made a mistake when telling the ERD Investigator what the Post Office Box number was, then the dismissal of the complaint should be upheld, because in either of those cases, the Equal Rights Division would have been using what was, to it, the "last-known address" of the Complainant when the certified letter demanding a response was mailed out.

However, if the Complainant's Post Office Box number was correctly given to the ERD Investigator by the Complainant's attorney, and the ERD Investigator then made a mistake in noting it or recording it, it could not be said that the ERD had used the "last-known address" of the Complainant when it sent the certified letter demanding a response.

The commission cannot determine where the mistake arose. As a consequence, the commission cannot make the determination that the ERD in fact used the "last-known address" of the Complainant when it sent the certified letter demanding a response. For this reason, the commission has concluded that the order dismissing the complaint should be set aside.

The commission understands that the ERD frequently receives information from parties about address changes by way of the telephone. In such cases, if it later turns out that the address the ERD is using is incorrect, there will be no way to be certain whether the error was on the part of the party who called or on the part of the ERD. The commission would note, however, that this kind of uncertain situation can probably be avoided in most cases, if parties who telephone with indications about address changes are also asked to provide confirmation in writing.

NOTE: Both parties submitted written argument to the commission. None of the arguments submitted by either party were found to be germane to the narrow issue before the commission, which was simply whether the complaint should have been dismissed on the grounds of failure to respond under Wis. Stat. � 111.39(3).

The Complainant submitted materials which were addressed exclusively to the merits of his underlying claim of discrimination. The commission did not consider these arguments, because no decision had been made on the question of whether the Complainant was discriminated against and that question was not before the commission.

The Respondent's arguments concerned its difficulties in serving notice of a deposition on the Complainant, and they also alluded to the fact that the Complainant declined to provide a current telephone number or address when he visited the offices of the Equal Rights Division on April 14, 1998. The problem with these arguments is that neither one of these things were the reason for the dismissal of the complaint. The only grounds for the dismissal of the complaint, and the only issue before the commission, was failure to respond within 20 days to the Administrative Law Judge's March 17, 1998 letter, under Wis. Stat. � 111.39(3).

cc: Kathleen A. Rinehart, Attorney for Respondent

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Footnotes:

(1)( Back ) There is also a note attached to the returned envelope from the January 23, 1998 mailing, which includes the Post Office Box number "9248," but there is no indication of when this note was written. The commission infers that it was written after the Complainant's attorney called back.