ANDRE WINGO #334317, Complainant

PEPSI COLA GENERAL BOTTLERS, 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 January 23, 2002
wingoan . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The ALJ sent a certified letter dated October 19, 2001, to the complainant inquiring about his intent to appear and present evidence at the hearing scheduled on his complaint of discrimination. The certified letter was sent to the complainant at his address, which was known to be 7954 West Glenbrook, Milwaukee, WI 53223. The certified letter advised the complainant that pursuant to Wis. Stat. § 111.39(3), he was being notified that he must contact the ALJ within 20 calendar days of the date of the letter regarding his intention to appear and proceed with his case. Further the letter advised the complainant that if he did not contact the ALJ within 20 calendar days of date the letter, his case would be dismissed with prejudice for failure to respond, pursuant to Sec. 111.39(3), Stats.

On November 15, 2001, the ALJ issued a decision stating that the certified letter sent to the complainant was returned after delivery was attempted by the Post Office, and that the complainant had failed to respond in writing or in any other manner within the time period specified in the certified letter. Accordingly, the ALJ dismissed the complainant's complaint with prejudice.

In his petition for review of the ALJ's decision the complainant states that he has been incarcerated since August 30, 2001, and "was not able to receive any correspondence from the Division." The complainant requests that the Division re-open this case.

The case file contains a letter from the complainant dated November 26, 2001, and received by the Equal Rights Division on November 28, 2001, in which the complainant notified the Division that he was incarcerated. The complainant included his new address on the envelope in which his letter was sent. There is nothing in the case file, however, which indicates that the complainant had ever notified the Division that he was incarcerated and had a new address prior to November 28. Included on the discrimination complaint form that the complainant filed with the Division was the information that "You must notify the Department if you change your address or phone number. If we are unable to locate you, your complaint may be dismissed."

Wisconsin Statute Section 111.39(3), provides in its entirety 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."

Since the correspondence from the department concerning the complainant's complaint was sent by certified mail to him at his last-known address and he failed to respond within 20 days to that correspondence, the ALJ's dismissal of his complaint must be affirmed and the complainant's request to re-open his case denied.

cc: Andre Wingo

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2003/04/24