COREY J WILSON, Complainant

NEW HORIZON CENTER INC, 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 June 27, 2001
wilsoco . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The ALJ sent a certified letter dated May 1, 2001, to the complainant at his last known address inquiring about his intent to appear and proceed with his case scheduled for hearing on June 29, 2001. The letter was sent to the complainant at the following address: "4751 N 19th Street, Milwaukee, WI 53209". The letter advised the complainant that if he did not contact the ALJ within 20 days of the date of the letter that his case would be dismissed with prejudice for failure to respond, pursuant to section 111.39(3), Stats.

On May 22, 2001, the ALJ issued a decision stating that the certified letter sent to the complainant was returned to the Equal Rights Division as unclaimed after the Post Office attempted delivery. Further, the decision stated that the complainant had failed to respond in writing or in any other manner within the time period specified in the letter. Accordingly, the complainant's complaint was dismissed with prejudice.

In his petition for commission review of the matter the complainant asserts that he did not receive the ALJ's letter. He asserts that the Post Office often mixes up his mail with someone else who lives on the next block. The complainant states that he lives on 19th street and that there is a 19th place on the next block with the same address as his. The certified letter returned to the division by the Post Office, however, indicates that attempts were made to deliver the letter to the complainant on three different occasions. It is difficult to believe that the Post Office delivered the certified letter to the wrong address three different times.

In any case, the ALJ's dismissal of the complainant's complaint in this matter must be affirmed. 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." (Emphasis added).

The ALJ's dismissal of the complaint must be affirmed because the statute does not provide for any exceptions, even where there may have been a good reason for the failure to respond to the correspondence from the department.

Appealed to Circuit Court. Reversed and Remanded January 11, 2002.

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uploaded 2001/06/29