CHRISTOPHER BAILEY IV, Complainant

TARGET STORES, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter. The complainant filed a timely petition for review.

Based upon its review of this matter, for the reasons stated in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission 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 the complainant'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 October 22, 2010
bailech . rpr : 125 : 9 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On July 24, 2009, the ERD sent a letter to Christopher Bailey at his then last-known address in Milwaukee, Wisconsin requesting a response as to how he wished to proceed with his ERD case now that the EEOC had completed its investigation. The letter asked Bailey to sign either the box in the letter stating that he no longer wished to pursue his complaint or the box stating he would like the ERD to do an independent investigation of his complaint. The ERD received this letter back from the Post Office on July 27, 2009, with a notice that the forward time had expired and showing Bailey's address as 22 Corwin Cir., Hampton, Virginia 23666.

On August 21, 2009, the ERD sent a second letter request to Bailey at the Hampton, Virginia address asking him how he wished to proceed with his ERD case. There is nothing in the case file which indicates that this letter was returned to the ERD as undeliverable by the Post Office.

Subsequently, on February 25, 2010, the ERD sent a letter by certified mail to Bailey at the Hampton, Virginia address. This letter again requested a response from Bailey as to how he wished to proceed with his ERD case now that the EEOC had completed its investigation and offered him the choice of having the ERD close his case file or do an independent investigation of his complaint. This letter also informed Bailey that if the ERD did not receive a response to this letter by March 17, 2010 that his case would be dismissed pursuant to s. 111.39(3), Wis. Stats.

On March 26, 2010, the ERD issued a Notice of Dismissal - Investigation and Order dismissing Bailey's complaint which stated as the reason that he had failed to respond to a certified letter within the specified time. The Notice of Dismissal informed Bailey that the dismissal would become final unless a written appeal was received from him within 20 days of the date of the dismissal.

On April 9, 2010, the ERD received the certified letter back from the Post Office marked "Unclaimed" and the notations "L N" "3/1", "3-19" and "3-24".

On April 13, 2010, which was within 20 days of March 26, 2010 Notice of Dismissal, the ERD received a letter dated April 6, 2010, from Bailey stating that he was very much interested in filing an appeal. Bailey's appeal letter shows his address as 22 Corwin Cir., Hampton, VA 23666.

On August 19, 2010, the ALJ issued a decision affirming the ERD's dismissal of Bailey's complaint for having failed to respond to a certified letter within the specified time.

DISCUSSION

Wisconsin Administrative Code § DWD 218.06(3)(a)1 provides that the department may dismiss a complaint where "The complainant has failed to respond to correspondence from the department concerning the complaint within 20 days after the correspondence was sent by certified mail to the last-known address of the person filing the complaint, in accordance with the provisions of s. 111.39(3), Stats."

Wisconsin Statute § 111.39(3) provides that "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."

In Palmer v. Wisconsin Public Service Corp. (LIRC, 07/30/03) and Frederick v. Initial Security (LIRC, 08/28/03), the commission held that in order to warrant dismissal of a complaint under Wis. Stat. § 111.39(3), "correspondence from the department concerning the complaint" must be understood to mean correspondence which poses some sort of question and informs the complainant that a response is required, and that it must be purposeful correspondence (i.e., assist the department in obtaining information that it actually needs to process and decide cases).

The February 25, 2010 correspondence from the department satisfied the requirements of the Palmer and Frederick cases. It posed a question as to how Bailey wished to proceed with his ERD case now that the EEOC had completed its investigation and it informed him that a response was required. Further, the purpose of the correspondence was to assist the department to obtain information needed to process Bailey's ERD complaint.

On appeal from the ALJ's decision Bailey asserts as follows:

My records indicate that I did not receive a certified letter, resulting to a possible dismissal of this case. The time lost between August 21, 2009 to February 25, 2010 is out of my control; and subsequently the bar for contact was not met do to me not receiving the certified letter. The "attempt to contact" could have been met by other means; via telephone by the telephone number on record or email, since there was no contact met through the mail and months went by. "Frederick and Palmer" cases do not apply because "The Jeopardy of Dismissal for Timely Respond (sic)" never put me on notice. ... (Italicization emphasis in original.)

In McGee v. County of Milwaukee (LIRC, 08/18/06), the commission held that due process considerations require that a complainant receive a hearing on his or her assertion that notice of the department's certified mail was never received. This case is controlling here, particularly since there is nothing in the record which clearly contradicts Bailey's assertion of not receiving the certified mail. While there is nothing in the case file which indicates that the department's August 21, 2009 letter was returned to the ERD as undeliverable by the Post Office, assuming for purposes of argument that Bailey had in fact received this correspondence, this correspondence does not meet the statutory requirement for dismissal under § 111.39(3), Stats. The commission also notes that while clearly there is not any requirement under § 111.39(3) that a certain number of attempts be made to deliver certified mail by the Post Office before a complaint can be dismissed under this statutory section, the Post Office markings on the certified mail returned to the ERD indicate that two of the purported attempts to notify Bailey of the certified mail occurred after the 20-day period for Bailey to respond had already expired.

The respondent has filed an answer to Bailey's petition for review which essentially asserts that the commission should dismiss Bailey's petition for review for the following reasons: 1) Bailey did not notify the Division of his new address; 2) the ALJ's August 19, 2010 decision affirming the March 26, 2010 Notice of Dismissal was sent to Bailey's Hampton, Virginia address (which Bailey timely appealed), the same address where the March 26, 2010 Notice of Dismissal (which Bailey timely appealed) and the Divisions' August 21, 2009 correspondence was sent (which Bailey did not respond to); 3) Bailey has provided no reason for failing to respond to the August 21 correspondence even though it was sent to the same address and via the same means as the March 26, 2010 Notice of Dismissal; and 4) Bailey merely states that he did not receive the February 25 certified letter.

Bailey indeed may have failed to notify the Division of his new address. However, the statutory provision under consideration in this matter concerns the department's authority to 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." Wis. Stat. § 111.39(3). (Emphasis added.) The only correspondence the department sent by certified mail to Bailey was the February 25, 2010 letter.

Further, while a question may arise regarding Bailey's credibility in this matter this determination is best made after receiving testimony at a hearing. As noted above, the commission has held that due process considerations require that a complainant receive a hearing on his or her assertion that notice of the department's certified mail was never received. McGee, supra.

Accordingly, the commission has set aside the decision of the administrative law judge and remanded the matter to the Equal Rights Division for further proceedings.

cc: Attorney Marcie B. Cornfield

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