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

YVONNE NAPIWOCKI, Complainant

FULFILLMENT SPECIALISTS OF AMERICA, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199801309

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: October 21, 1998
napiwyv.rsd : 125 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On July 31, 1998, ALJ Larry Jakubowski sent a letter by certified mail to the complainant's last-known address. This letter advised the complainant that it was important for scheduling purposes to know whether or not she intended to appear and present evidence at the scheduled hearing on her complaint. Further, ALJ Jakubowski's letter advised the complainant that if she did not contact him within 20 days of the date of his letter, that her case would be dismissed for failure to respond, pursuant to sec. 111.39(3), Wis. Stat.

The complainant responded to the ALJ's certified letter by letter, which was postmarked August 21, 1998, and received by the Equal Rights Division on August 24, 1998. The complainant therefore failed to contact the ALJ within 20 days of his certified letter. The ALJ issued an order dismissing the complainant's complaint.

Section 111.39(3), Stat., 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."

In her petition for commission review, the complainant states that she would like to bring it to the commission's attention that the respondent had failed to respond to her complaint, and that she would hope that the commission would review this case. However, under sec. 111.39(3), Wis. Stat., absent a timely response to department correspondence, the ALJ was required to dismiss the complainant's complaint. This statute provides for no exceptions. The respondent's failure to submit an answer to the complainant's complaint after notice that she had filed a complaint with the department simply resulted in the possibility that an initial determination as to whether an act of discrimination had occurred would be based only on the department's investigation and the information supplied by the complainant. See Wis. Admin. Code, sec. ILHR 218.04(2). Accordingly, the commission must affirm ALJ Larry Jakubowski's dismissal of the complaint.

cc: Ralph Aguilar
Bob Schroeder

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