ALFONSO LOWE SR, Complainant

TRAMONT CORP, 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 it has reviewed the record in this matter. Based on its review, the commission agrees with the decision of the ALJ, and it adopts that decision as its own, except that it makes the following modifications:

1. Where the complainant's first name appears in the decision as "Alphonso", that name is deleted and the name "Alfonso" is substituted therefor.

2. In the first paragraph of the decision where the complainant is referenced using the words "she" or "her", those words are deleted and where appropriate the words "he", "him" or "his" are substituted therefor.

3. In the last line of the first paragraph of the decision, the date "July 3, 2007" is deleted and the date "June 13, 2007" is substituted therefor.

4. In the sentence shown under the ORDER, the words "with prejudice" are inserted after the word "dismissed".

5. On the second page of the decision where it shows that a copy of the decision being sent to "Georgia J. Reithal, Attorney for Respondent", this is deleted from the decision since Reithal was not the respondent's attorney.

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

Dated and mailed October 31, 2007
loweal . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On June 13, 2007, the Equal Rights Division sent a letter by certified mail to Alfonso Lowe at his last known address. The correspondence stated that the ERD had held his case in abeyance while he pursued his charge of discrimination against the respondent with the federal Equal Employment Opportunity Commission and that the ERD had been advised that his case was dismissed by the EEOC. The correspondence advised Lowe that it was now necessary for him to respond to the ERD's letter, and informed him of the option of signing a statement requesting the Division to close his file if the matter had been settled or he wished to withdraw his case, or, if he would like for the ERD to do an independent investigation of this complaint, the option of making a separate written request for the ERD to do an independent investigation of his complaint which had to be received at the ERD by July 3, 2007.

In addition, the ERD's June 13, 2007 correspondence advised Lowe that if the ERD did not receive a response to the letter by July 3, 2007, his case would be dismissed pursuant to section 111.39(3) of the Wisconsin Statutes.

A return receipt for the ERD's June 13, 2007 certified mail sent to Lowe is present in the case file and it shows that Lowe received and signed for this certified mail on June 14, 2007.

Subsequently, on July 26, 2007, the ERD issued an order dismissing Lowe's complaint "without prejudice", stating as reason that he had failed to respond to the June 13 certified letter within the specified time.

On August 8, 2007, the ERD received a written appeal from Lowe, which stated, in its entirety as follows: "I would like to appeal the dismissal order for case No. CR200603460. Alfonso Lowe Sr."

Thereafter, in a decision dated September 27, 2007, after stating that Lowe had failed to state any reason for not timely responding "to the July 3, 2007 (sic) correspondence" and that Wis. Stat. § 111.39(3) makes dismissal of a complaint mandatory where the complainant fails to respond to a certified letter from the Division within 20 days, the ALJ ordered that the complaint in this matter be dismissed.

In his petition for review Lowe states, "I am requesting review of my complaints ERD Case No. CR200603460 and EEOC Case No. 443200603492C, I am suffering from a life-threatening medical condition and I am at (sic) incapable of any type of work."

DISCUSSION

Wisconsin Statute § 111.39(3) provides as follows:

(3) 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 department's June 13, 2007 correspondence was purposeful in that it inquired if the complainant wanted the Division to conduct an independent investigation of his complaint that was dismissed by the EEOC, and the correspondence advised him that a written response was required by July 3, 2007. See Palmer v. Wisconsin Public Service Corp. (LIRC, 07/30/03).

While Lowe asserts in his petition for review that he is suffering from a "life-threatening medical condition and that he is incapable of any type of work", he has provided absolutely no reason to believe that his asserted life-threatening medical condition and inability to work was any way related to his failure to timely respond to the department's June 13, 2007 certified letter. First of all, Lowe's claim of discrimination does not involve any alleged medical condition or inability to work. His complaint alleges that the respondent disciplined him "in retaliation for filing an EEOC charge and then a lawsuit against the company." Second, Lowe obviously had the ability to receive and sign for the department's certified mail on June 14, since his signature appears on the return receipt with that date. Third, Lowe made no mention of any life-threatening medical condition on August 8, 2007, in his written appeal from the ERD's order dismissing his complaint for failure to timely respond to the department's correspondence. Finally, in addition to the absence of any medical documentation from Lowe to substantiate his asserted life-threatening medical condition, Lowe's petition for review does not identify the nature of his asserted life-threatening medical condition, the date this medical condition is asserted to have first occurred, or state how or why this asserted medical condition prevented him from timely responding to the department's June 13, 2007 correspondence.

NOTE: While the complainant appears to request commission review of not only his ERD case but also his EEOC case, the commission's authority is limited to only a review of his ERD case.

cc:
Judy Rutledge
Human Resources

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