Wis.LIRC ER Decision: Kincaid - March 17, 2000 - Failure to respond to correspondence from the department - not established that decision sent to 'last-known address'

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

DELORES E. KINCAID, Complainant

EXCALIBUR LAUNDRIES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199900340

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an order in the above-captioned matter on January 21, 2000, dismissing the complainant's complaint of discrimination on the ground that she had failed to respond within 20 days to correspondence sent by certified mail to her last-known address. The complainant filed a timely petition for commission review.

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

ORDER

The order of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for further proceedings on the complainant's complaint.

Dated and mailed March 17, 2000
kincade.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On December 30, 1999, the administrative law judge sent a letter by certified mail to the complainant stating that she must contact him regarding her intention to appear and proceed with the scheduled hearing on her case. The envelope of the certified mail sent to the complainant was addressed as follows:

DELORES E. KINCAID
282 Wright St. Apt. B
PO Box 179
DELAVAN, WI 53115

The letter enclosed in the certified mail listed the complainant's address as follows:

282 South Wright Street, Apt. 2B
Delavan, Wisconsin 53115

The ALJ's letter informed the complainant that if she did not contact him within 20 days of the date of his letter, her case would be dismissed with prejudice for failure to respond, pursuant to Wis. Stat., s. 111.39(3). Wisconsin Statute section 111.39(3) provides 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."

On January 21, 2000, the ALJ dismissed the complainant's complaint, stating that she had failed to respond within the time period specified in his letter. The ALJ's decision notes that his certified letter was returned to the division as unclaimed after several attempts at delivery.

As noted above, the December 30, 1999 certified letter sent to the complainant contained both a street and a post office box address for her. It is not known what address appeared on the envelope containing the ALJ's January 21, 2000 dismissal decision. However, the enclosed dismissal decision and an attached letter regarding appeal rights again listed the complainant's address as follows:

282 S WRIGHT ST APT 2B
DELAVAN WI 53115

The South Wright St., Apt. 2B address was the initial address that appeared on the complainant's complaint of discrimination filed with the division on January 21, 1999. Thereafter, February 9, 1999 correspondence sent by the department to the complainant at this address was returned to the department by the post office stamped, "NOT DELIVERABLE AS ADDRESSED-UNABLE TO FORWARD". The log of the equal rights officer who investigated the complaint contains the following statement under the date February 15, 1999: "Ltr to C returned by P O. I called C re correct address. Her correct street address is 282 Wright St. Apt B, Delavan-She gets mail at PO Box 179, Delavan WI 53115"

Whatever address appeared on the envelope of the ALJ's January 21, 2000 dismissal decision, the complainant evidently received that decision since she filed a timely petition for review of the ALJ's decision. However, the commission is left to speculate as to how the ALJ's January 21 decision was addressed and why the complainant was able to receive that decision.

In her petition, the complainant asserts that "All correspondence in this case has been previously sent to my above mentioned Post Office Box. The certified letter which was returned was sent to a source in which I do not receive mail and this case has been closed due to an awaited response that was not feasible." (The complainant's reference to her above Post Office Box was a reference to the top of her letter petition where her name, P O Box 179, city, state, zip code and telephone number appeared.)

As previously noted, Wis. Stat., s. 111.39(3), provides that the department shall dismiss a complaint if the person filing the complaint fails to respond within 20 days to 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 December 30, 1999 certified mail sent to the complainant is contained in the case file. The envelope contains a post office stamp showing the dates that a "First Notice" and "Second Notice" had been given for the certified mail, and then another post office stamp which states that this mail was "RETURNED TO SENDER", with "Unclaimed" checked as the reason.

The circumstances presented in this case do not permit a determination that the post office had attempted to deliver the department's December 30, 1999 certified mail to the P O Box 179 address rather than to the 282 Wright Street address. The log of the equal rights officer clearly shows that the department had been put on notice back in February 1999 that the complainant's mailing address was not on Wright Street, but P O Box 179. In view of the clear notice the department had that the complainant's mailing address was P O Box 179, and absent clear indication that the post office had attempted delivery of the certified mail to the complainant at her post office box address, the commission is unable to conclude that the department's correspondence was sent by certified mail to "the last-known address" of the complainant.

The commission has therefore remanded this case to the division for further proceedings on the complainant's complaint of discrimination.

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