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

KENNEDY JOHNSON, Complainant

BADGER METER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200404168,

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.

DECISION

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

Dated and mailed July 29, 2005
johnske . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The complainant filed his charge of race discrimination with the EEOC on September 16, 2004, and the Equal Rights Division (ERD) received a copy of this charge on September 23, 2004. The EEOC, pursuant to its work sharing agreement with ERD, investigated the charge, and, on January 3, 2005, provided notice to the complainant that it was closing its investigative file and he had 90 days within which to file suit.

In accordance with its usual practice, on March 4, 2005, ERD mailed a certified letter to the complainant at his address of record explaining that it had received notice that his case had been dismissed by the EEOC, he was required to indicate to ERD whether he wished to withdraw his charge or whether he wished ERD to do an independent investigation, and, if ERD did not receive a response to this letter by March 24, 2005, his case would be dismissed pursuant to Wis. Stat. § 111.39(3).

The file in this matter indicates that the post office apparently attempted delivery at least twice, i.e., on March 11 and March 19, and that the letter was returned to ERD on April 5, 2005, with a notation that it had been "unclaimed." As a result, ERD issued an order on April 6, 2005, dismissing the complainant's charge of discrimination. This order stated that the dismissal would become final unless a written appeal was received within 20 days of the date of the order.

The complainant, in a letter dated April 21, 2005, and received by ERD on April 22, 2005, stated that he had received the "appeal letter," and wanted to "appeal his case." The complainant's appeal of the order of dismissal was referred to ALJ Grandberry for decision. He issued his order of dismissal on June 3, 2005, relying upon the complainant's failure to respond to ERD's 20-day certified letter or to provide an explanation for this failure.

In a timely petition for commission review, the complainant explained for the first time that he had not answered ERD's certified letter because he had been moving his son to Mississippi and looking for work there.

Wisconsin Statutes § 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 commission has ruled that the department correspondence referenced in this statutory provision must require a response, and the information it seeks must be needed by the department in order to process and decide the underlying case. See, Palmer v. Wisconsin Public Service Corp., ERD Case No. CR200201890 (LIRC July 30, 2003); Frederick v. Initial Security, ERD Case No. CR200202997 (LIRC Aug. 28, 2003).

In addition, relying upon the circuit court decision in Wilson v. LIRC and New Horizon Center, Case No. 01-CV-006492 (Wis. Cir. Ct. Milw. Co., Jan. 11, 2002), to the effect that the failure of the postal service to deliver or attempt to deliver a certified letter to the correct address frustrated the legislative purpose underlying Wis. Stat. § 111.39(3), the commission has recently ruled that this legislative purpose is also frustrated by the failure of the postal service to follow its typical practice of leaving notice for the intended recipient that delivery of a certified letter had been attempted. See, Unseth v. County of Vernon, ERD Case No. 200404469 (LIRC June 30, 2005).

The department correspondence at issue here advised the complainant that a response was required, and the information it sought, i.e., whether the complainant intended to withdraw his charge or instead wanted ERD to investigate it, was needed by ERD in order to process the underlying case. See, Wren v. Columbia St. Mary's Hospital, ERD Case No. 200402125 (LIRC Nov. 26, 2004).

Moreover, the complainant has not asserted here that delivery of the certified letter at issue was to an incorrect address, or that the postal service did not follow its typical practice of leaving notice that delivery had been attempted.

The complainant has asserted instead that he did not receive the certified letter because he was out of town. Apparently, the complainant did not make arrangements for the monitoring or forwarding of his mail during his absence. Under such circumstances, when a complainant's failure to respond to a 20-day letter resulted from actions within his control, the commission has consistently held that Wis. Stat. § 111.39(3) does not permit an exception and requires that the underlying case be dismissed. See, Simon v. Emmpak Foods, ERD Case No. CR200403862 (LIRC May 16, 2005); Keeler v. SBC Ameritech, ERD Case No. 200200548 (LIRC Nov. 29, 2002); Wren, supra.

As a result, the commission has affirmed the ALJ's dismissal of the complainant's charge of discrimination for failure to respond to correspondence from the department within the meaning of Wis. Stat. § 111.39(3).

cc: Ron Dix, Badger Meter


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