ELLEN UNSETH, Complainant

COUNTY OF VERNON, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter affirming the Department's dismissal of the complainant's complaint on the grounds that she failed to respond to a certified letter within the specified time. The complainant filed a timely petition for review.

Based upon its review of this matter, for reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission hereby issues the following:

The decision of the administrative law judge is set aside and this matter is remanded to the Division for further proceedings.

Dated and mailed June 30, 2005
unsetel . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

On March 1, 2005, the Equal Rights Division (ERD) sent by certified mail a letter to the complainant at her Viroqua address, E9065 County Trunk Hwy SS. The letter stated that the ERD has had her case in abeyance while she pursued the matter with the Federal Equal Employment Opportunity Commission (EEOC) and that the ERD has been advised that her case had been dismissed by the EEOC. The letter stated that it was now necessary for the complainant to respond to this letter, and that if she would like the ERD to do an independent investigation of her complaint a separate written request for this investigation must be received by March 21, 2005.

The ERD's March 1 certified letter further stated that if a response was not received by March 21, 2005, the complainant's case would be dismissed pursuant to Wis. Stat. § 111.39(3).

Wisconsin Statute section 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.

The March 1 certified mail sent to the complainant was received back at the ERD on March 31, with a notice by the Post Office that the mail was unclaimed, and that delivery had been attempted on March 4, March 9 and March 19.

On March 31 the ERD sent to the parties a notice of dismissal, ordering the dismissal of the complainant's complaint on the grounds that she had failed to respond to the certified letter within the specified time.

The complainant filed an appeal from the order dismissing her complaint with the ERD on April 15. In her appeal letter, the complainant states that the department's letter "came as a total surprise since I knew nothing about it." The complainant states that on March 4 she had been to a doctor's appointment, on March 9 she may have been to the dentist and that on March 19 she was on an overnight trip with her daughter. Further, she asserted that "The local Post Office did not telephone me or in any way try to contact me."

This matter was subsequently assigned to an ALJ, who issued a decision affirming the dismissal of the complainant's complaint based on her failure to timely respond to a certified letter mailed to her last known address.

On appeal from the dismissal of her complaint, an advocate for the complainant (Thomas A. Fortney) agrees that she was not at home on the dates the Post Office attempted delivery of the certified letter from the ERD. He asserts, however, that "In a small rural community such as ours, usually if a certified letter cannot be delivered, the Post Office will send a note stating that you have a certified letter that can be picked up at the Post Office by signing for it. This evidently was not done."

According to the U.S. Postal Service's web site, with respect to mail requiring signature, if no one is home when the letter carrier attempts delivery the letter carrier will leave a note (with instructions for intended recipient) and return the item to the Post Office. There is no indication that this practice does not apply to rural areas.

In the case of Corey J. Wilson v. LIRC and New Horizon Center, Case No. 01CV006492, Milw. Co. Cir. Ct, January 11, 2002), the court reversed a decision by the commission, which had dismissed Wilson's complaint for failure to respond to a certified letter mailed to his last known address where Wilson claimed that he had not received the certified mail and therefore could not have failed to respond to a letter he never received. Wilson asserted that the Post Office often failed to deliver his mail, and apparently supplied the court two letters from the City of Milwaukee regarding a requested address change to solve the mail delivery problems. Focusing on the requirement that the department correspondence be sent by certified mail, the Honorable Judge Maxine White cited case law stating that the primary purposes behind the requirement of certified mail is to ensure delivery and to easily determine the date of delivery. Judge White then reasoned as follows:

"It is undisputed that the certified letter in the case at bar went undelivered, but the statute does not seem to contemplate whether reasons for not responding to the letter are reasonable. If the legislature requires the use of certified mail to ensure delivery, then the intent of section 111.39(3), Stats., was clearly frustrated in the case at bar. As long as the petitioner still lives at 4751 N. 19th St. in Milwaukee, Wisconsin, which it is apparent from his submissions to the Commission and the Court that he does, the purposes of section 111.39(3), Stats. is frustrated when a certified letter with the correct address is not delivered to that address."

In this case, there is no question that attempts (in fact, three attempts) were made to deliver the certified letter to the complainant's correct address. The problem here, according to the complainant (and the commission has gleaned nothing from the file or correspondence from or on behalf of the complainant to question the complainant's credibility), is that the carrier never left a note indicating she had certificate mail.

In stating in Wilson, that "the purposes of section 111.39(3), Stats. is frustrated when a certified letter with the correct address is not delivered to that address," Judge White was essentially assessing fault on the part of the Post Office in its handling of the certified mail. Stated differently, Judge White was asserting that there was a factor beyond the complainant's control that caused his failure to timely respond to the department's correspondence. This is essentially what the complainant herein is alleging -- the Post Office failed to follow its practice of leaving a note informing her she had certified mail that could be picked up at the Post Office and had it done so she would have been alerted that she had certified mail and could have picked it up at the Post Office.

While Wis. Stat. § 111.39(3) requires the use of certified mail for the department correspondence, because of the peculiarities associated with such mailing service it is not always the best means of assuring that the intended recipient will receive notice of the department's correspondence. In the instant case, the failure of the Post Office to leave Ellen Unseth notice of its attempted certified mail delivery frustrated the purposes of Wis. Stat. § 111.39(3).

Based upon the above stated reasons, the commission has set aside the decision of the ALJ dismissing the complainant's complaint and remanded this matter for further proceedings before the Equal Rights Division.

cc:
Thomas A. Fortney
Attorney Lisa Bergersen

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uploaded 2005/07/01