OBIAGELI A NZEAKA, Complainant

SOUTH POINT HEALTH CARE, 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 August 26, 2005
nzeakob . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

On April 20, 2005, the ERD sent correspondence by certified mail to the complainant at her last known address, which was 4715A W. Leon Terrace, Milwaukee, Wisconsin 53216. The correspondence stated that her ERD case had been held in abeyance while she pursued the matter with the EEOC and that the ERD had been advised that her case has been dismissed by the EEOC. The correspondence stated that it was now necessary for the complainant to respond to this letter. The correspondence advised the complainant 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 May 10, 2005. In addition, the correspondence advised the complainant that if the ERD did not receive a response to this letter by May 10, 2005, the case would be dismissed pursuant to section 111.39(3) of the Wisconsin Statutes.

On May 2, 2005, the ERD received the April 20 certified mail it had sent to the complainant back from the Post Office with the following on the envelope: The handwritten words, "She doesn't live there" and "Unknown", a Post Office "Return to Sender" stamp with the "Attempted-Not Known" box checked and a typewritten Post Office notice affixed to the envelope which reads, "Return to Sender, Attempted-Not Known, Unable to Forward."

Subsequently, on May 11, 2005, the ERD issued a Notice of Dismissal dismissing the complainant's complaint on the grounds that she had failed to respond to a certified letter within the specified time, from which the complainant appealed. The complainant contested the dismissal of her complaint, asserting that the only communication she had received from the ERD since she filed her complaint with the EEOC was the January 24, 2005 ERD letter stating that the EEOC was to initially process her complaint. The complainant asserted that at no time did she receive any other communication from the ERD which required her to respond within a specified time, and that if she had, she would certainly have responded.

Upon review of the matter, the ALJ concluded that the complainant had refused to accept the certified mail from the ERD, and that the ERD had sent meaningful correspondence to the complainant which required a response as to whether she wanted the ERD to commit its limited resources to a second investigation of her claim.

With respect to refusing to accept the certified mail the ALJ noted the following: The words "She doesn't live there" were written on the envelope, presumably by the Post Office, since the letter would not be delivered or leave the possession of the Post Office without a signature on the return card; that the Post Office had placed on the envelope and marked "Attempted-Not Known" and on April 27, 2005, the Post Office had marked on the envelope "Return to Sender, Attempted-Not Known, Unable to Forward"; and that the letter was addressed to the address used by the complainant. Further, the ALJ stated that the complainant was required to cooperate with the Division in handling her claim, including accepting the delivery of certified mail, and noted that she should have been expecting to hear from the Division, since her complaint had been dismissed by the EEOC and she was earlier informed that the Division would not act on her case until after it was processed by the EEOC. In addition, the ALJ noted that the commission has held that dismissal for failure to respond to correspondence from the division is required even where the complainant did not receive the letter because the complainant failed to claim the letter, citing Keeler v. SBC/Ameritech (LIRC, 11/29/02) (where Post Office had provided complainant with notice of the certified letter on three occasions but letter went unclaimed, Wis. Stat. § 111.39(3) required dismissal of case).

The commission concludes, however, that it has not been established that the complainant ever refused to accept the certified mail from the department. The ALJ relies primarily on the words, "She doesn't live there" written on the envelope and the fact that the certified mail was correctly addressed to the complainant. But the words "She doesn't live there" written on the envelope provide no indication that this was information provided by someone from the complainant's household, and, in fact, is wording which suggests that this information was provided by someone other than from the complainant's household. Further, the complainant has steadfastly denied ever receiving any certified mail and, in her petition, referencing the words "She doesn't live there" relied on by the ALJ, she states:

"That sounds funny because ever since September 30, 2001 my husband and I came into the United States as legal residents, we have been living at 4715A W. Leon Terrace, Milwaukee, WI 53216. My husband's brother-in-law owns the house. The same Post Office that concluded that I do not live there has unceasingly been delivering our mail at the same address and in the same mail box since then and none of those letters have gone unclaimed."

A complainant cannot be penalized by having her complaint dismissed for refusal to timely respond to correspondence from the department sent by certified mail when some unknown person not of the complainant's household, for whatever reason, has misinformed the postal carrier about the complainant's place of residence.

Accordingly, the commission has set aside the decision of the administrative law judge and remanded this matter for further proceedings.

cc: Attorney Jeffrey C. Londa

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