GENE A MATTHEWS, Complainant

CAMPBELLSPORT  EDUCATION  ASSOCIATION, 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 September 18, 2009
matthge . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Gene Matthews filed a charge of discrimination against the respondent in which he alleged that due to his race (black) the respondent failed to represent him by filing grievances on his behalf. The charge of discrimination was originally received by the Equal Employment Opportunity Commission on March 16, 2007, and subsequently received at the Equal Rights Division on April 4, 2007. The EEOC processed Matthews' charge of discrimination first since it was originally received by the EEOC. After investigation, the EEOC dismissed Matthews' charge of discrimination.

On February 20, 2009, the ERD sent a letter by regular mail to Matthews notifying him that the ERD had been advised that the EEOC had dismissed his case and that a response from him was necessary to let the ERD know how to proceed with his case now that the EEOC had completed its investigation. The ERD's letter asked Matthews to sign a box containing the statement that he no longer wished to pursue his complaint and that the ERD could dismiss his complaint, or a box containing the statement that he would like the ERD to do an independent investigation of his complaint.

The ERD's February 20, 2009 letter notified Matthews that a response was due by March 3, 2009. However, Matthews did not respond to the ERD's February 20 letter.

On April 8, 2009, the ERD sent a second letter to Matthews regarding his complaint against the respondent, this time by certified mail. Matthews accepted delivery of the certified letter on April 14, 2009. The ERD's certified letter again notified Matthews that the ERD had been advised that the EEOC had dismissed his case. The certified letter also stated that it was now necessary for Matthews to respond to the certified letter. The certified letter instructed Matthews to sign a statement that the case had been resolved and to close his file if his case had been settled or he wished to withdraw it, or to make a separate written request for an investigation if he would like the ERD to do an independent investigation of his complaint.

The April 8, 2009 certified letter informed Matthews that if the ERD did not receive a response to this letter by April 28, 2009, his case would be dismissed pursuant to Wis. Stat. § 111.39(3). Matthews did not respond to the department's April 8 certified letter. Wisconsin Statute Section 111.39(3) provides 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.

On May 15, 2009, the department issued an order dismissing Matthews' complaint because of his failure to respond to the April 8, 2009 certified letter within the specified time.

Matthews filed an appeal of the dismissal of his complaint with the department on May 28, 2009, but did not state a reason for his failure to respond to the department's certified mail. Noting that Matthews had not stated a reason for his failure to respond to the department's April 8 certified letter, the ALJ issued an order on July 22, 2009, dismissing Matthews' complaint.

Matthews filed a petition for commission review of the matter on August 11, 2009.

Matthews notes that the department's May 15, 2009 order which dismissed his complaint did not state that he had to supply a reason for his appeal. Matthews now supplies the following explanation for his failure to respond to the department's correspondence:

Because the Campbellsport Education Association seemingly was coming around and starting to support my grievances against the Campbellsport School District, I was willing to let bygones be bygones because I felt as though the union was starting to support me. I now feel, however, that it was a false pretense of support. In that I mean that when the date of appeal has passed, the union then refused (as they had in the past) to support any grievances that I would file. I think the organization did this because of the threat of the ERD and EEOC complaints hovering over them and when the date of appeal passed, they felt that they could reverse their support without further retribution from me. After their refusal to help, I wanted the ERD/EEOC case to then run its course.

Matthews indicates that he chose not to respond to the department's April 8, 2009 certified mail (and the earlier February 20, 2009 correspondence) because the respondent "seemingly was coming around and starting to support [his] grievances" and therefore he "was willing to let bygones be bygones". However, that was a decision that Matthews chose to make. Matthews' explanation for his failure to respond to the department's certified mail does not provide a reason for avoiding the dismissal of his complaint. The department first sought direction from Matthews as to how it should proceed on his pending ERD complaint by regular mail on February 20, 2009, and then subsequently on April 8, 2009, by certified mail. However, Matthews provided no response whatsoever. Clearly, Matthews knew that by providing no response whatsoever to the department's certified mail that his discrimination complaint against the respondent would be dismissed. The ERD's certified letter sent to Matthews on April 8, 2009 specifically advised Matthews that if the ERD did not receive a response to this letter by April 28 that his case would be dismissed.

cc:
Gene A. Matthews
Attorney Michael D. Phillips

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

uploaded 2009/10/02