JAMES L HOBSON, Complainant

USA SECURITY, Respondent

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.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed January 31, 2008
hobsoja . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In June 2007, James Hobson filed a charge with the federal Equal Employment Opportunity Commission alleging that the respondent had discharged him based on his race and in retaliation for opposing discriminatory practices in violation of Title VII of the Civil Rights Act of 1964. This charge was also filed with the Equal Rights Division, but the EEOC was processing it first since that was the agency which originally received the charge.

A letter dated July 11, 2007, from the EEOC states that in view of the agreement reached between Hobson and the respondent on his charge, the EEOC would take no further action on his charge.

On September 7, 2007, the Equal Rights Division sent a letter by certified mail to Hobson at his last known address. The correspondence stated that the ERD had held his case in abeyance while he pursued his charge of discrimination against the respondent with the federal Equal Employment Opportunity Commission and that the ERD had been advised that his case was dismissed by the EEOC. The correspondence advised Hobson that it was now necessary for him to respond to the ERD's letter, and informed him of the option of signing a statement requesting the Division to close his file if the matter had been settled or he wished to withdraw his case, or, if he would like for the ERD to do an independent investigation of this complaint, the option of making a separate written request for the ERD to do an independent investigation of his complaint which had to be received at the ERD by September 27, 2007.

In addition, the ERD's September 7, 2007 letter advised Hobson that if the ERD did not receive a response to the letter by September 27, 2007, his case would be dismissed pursuant to section 111.39(3) of the Wisconsin Statutes.

Hobson did not respond to the ERD's certified letter by September 27 and on October 24, 2007, the ERD issued an order dismissing Hobson's complaint because he had failed to respond to a certified letter within the specified time.

On October 31, the ERD received a letter from Hobson. In this letter Hobson states that he is sorry that he did not respond to the letter and he asks the ERD to please forgive him and to take into consideration that he wants justice, apparently which is to "let USA recognize [their] mistake for discrimination."

In a decision issued on December 5, 2007, the ALJ noted that Hobson's appeal failed to state any reason as to why he had not responded timely to the ERD's correspondence, and that Wis. Stat. § 111.39(3) makes the dismissal of a complaint mandatory where the complainant fails to respond within 20 days to a certified letter from the ERD.

Wisconsin Statute § 111.39(3) provides as follows:

(3) 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.

Hobson filed a response to the ALJ's decision on December 26, 2007. In his response, Hobson initially makes several assertions, including the following: That he works second shift; that he did respond "to the letter that came to my house"; (apparently) that he does not have a mail box at the Post Office, his address is 4613 N. 30th Street, Milwaukee, Wisconsin; that he does not go to the Post Office; and that the mail carrier did not knock on his door so that one of his family members would sign for the letter.

Ultimately, however, Hobson admits that the reason he did not go to the Post Office was, "I thought it was a bill [collector] who was harassing me."

The department's September 7, 2007 correspondence was purposeful in that it inquired if Hobson wanted the ERD to conduct an independent investigation of his charge that was dismissed by the EEOC, and this correspondence advised him that a written response was required by September 27, 2007. See Palmer v. Wisconsin Public Service Corp. (LIRC, 07/30/03).

Hobson's response to the ALJ's decision indicates that he did receive notice that he had a certified letter at the Post Office. Hobson failed to go to the Post Office in order to ascertain who the mail was from. Had he done so he would have learned that it was correspondence from the department regarding his ERD complaint of discrimination. A failure to claim certified mail due to a belief that it was mail from a bill collector requires a dismissal of Hobson's ERD complaint pursuant to Wis. Stat. § 111.39(3). Wren v. Columbia St Mary's Hospital (LIRC, 11/26/04).

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