PHILLIP W. GRAHAM, Complainant

STARK ASPHALT, 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 October 19, 2001
grahaph . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The ALJ mailed a certified letter dated April 2, 2001, to the complainant at his last known address inquiring about his intent to appear and proceed with his case scheduled for hearing on May 30, 2001. The letter advised the complainant that if he did not contact the ALJ within 20 days of the date of the letter, his case would be dismissed with prejudice for failure to respond, pursuant to Wis. Stat. § 111.39(3). The ALJ's certified letter also notified the complainant that she was enclosing a letter from the EEOC that he should read because his federal complaint could also be dismissed should he fail to respond in a timely manner.

On May 10, 2001, the ALJ issued a decision in which she stated that the complainant failed to respond to the certified letter in writing or in any other manner within the time period specified in the letter. Accordingly, the ALJ dismissed the complainant's complaint with prejudice.

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."

In a timely petition and attached affidavit filed with the Equal Rights Division by an attorney on behalf of the complainant, the attorney asserted that on or about March 22, 2001, she had a telephone conversation with the complainant "with respect to representing him in a discrimination claim pending with the.Equal Rights Division," that on or about April 4, 2001, the complainant informed her that he received a letter dated April 2, 2001, from the Equal Rights Division requesting that he contact the ALJ regarding his intention to appear for his May 30, 2001 scheduled hearing, and that on or about April 17, 2001, she contacted the ALJ by telephone and informed the ALJ that the complainant wished to proceed with the hearing. The attorney further asserted that she informed the ALJ that she intended to contact the respondent's counsel about settling the matter and that the ALJ responded, "that was fine, but that the May 30th hearing date would stay on the calendar unless she heard otherwise from the parties."

By letter to both counsel dated May 24, 2001, the ALJ responded to the petition and affidavit. Among other things, the ALJ stated that she was able to confidently say that she did not receive a call from the attorney regarding the complainant's case at any time. The ALJ stated that had she spoken to the attorney she would have sent a letter confirming their conversation, as this is her normal practice. (The ALJ enclosed copies of six letters with dates ranging from January 10, 2001, to May 4, 2001, involving other cases where she had confirmed that a timely response had been received to a certified letter that required a response within 20 days.) The ALJ stated that there is no reason that she would have failed to write such a letter in this case had she received a call from the attorney. The ALJ also stated that she believed the attorney may be confusing another conversation the attorney had with her regarding an unrelated case, Laurie B. Cardinal v. Kohl's Department Stores. Further, the ALJ stated that aside from the petition, the attorney had never notified the division that she was representing the complainant, and that since the attorney had not filed an appearance in this matter she would have insisted that the attorney file such a document if the attorney had called her on or about April 17, 2001.

In written arguments to the commission on behalf of the complainant, the attorney stated that she stands by her affidavit.

In response respondent's counsel argued, among other things, that to reverse the decision of the ALJ would require a finding that the attorney did, in fact, contact the ALJ and that the ALJ (1) failed to make a memorialization of such conversation; (2) failed to advise the attorney to file a notice of appearance; and (3) failed to confirm the communication in writing, all of which are part of the ALJ's standard practice.

Further, the respondent argued that given that the attorney failed to memorialize the conversation in any way and never filed a notice of appearance, it is not reasonable to find that such conversation ever occurred. The respondent argued that the commission should not reverse a dismissal under Wis. Stat. § 111.39(3) upon the mere claim that verbal contact was made. The respondent argued that to do so would make hollow the statute because a complainant would need only claim a call was made to obtain reinstatement, and this would obviously frustrate the statute.

In reply to the assertion that she did not memorialize the conversation in writing, the attorney arguing on behalf of the complainant asserted that she is an officer of the court and that she signed a sworn affidavit attesting to the facts of the conversation she had with the ALJ. The attorney argues that contrary to argument by respondent's counsel, this does provide a reasonable basis to find that the conversation occurred. Further, along with her reply the attorney has submitted an additional affidavit in which she explains why she did not file a notice of appearance. She asserts that based on a discussion with respondent's counsel on or about May 1, 2001, regarding a stipulation whereby the complainant would agree to withdraw his ERD complaint in exchange for the respondent's agreement to participate in mediation and an actual mediation date, and an assumption that the complainant would voluntarily withdraw his ERD complaint, she did not believe it necessary for her to appear in the proceeding.

In response to the additional affidavit submitted by the attorney arguing on behalf of the complainant, the respondent's attorney submitted an affidavit of his own. The respondent's attorney asserts that in response to his telephone message left with the ALJ inquiring about the status of the case, he received a voice mail message from the ALJ on April 26, 2001, wherein she indicated as follows verbatim: "I have not heard from complainant. I plan to dismiss the ERD case. I am just waiting the additional time necessary to determine whether the complainant will respond to the EEOC letter within the 33 day time limit, so I can't issue until May 9." Further, the respondent's attorney asserts that in a telephone call received from the attorney on May 1, 2001, when he questioned whether or not she had advised the ALJ that she may be representing the complainant, her response was "no."

In view of the documentary record in this case, the commission concludes that the complainant failed to respond within 20 days to correspondence from the department concerning his complaint that was sent by certified mail to his last known address. The ALJ is confident that she did not receive a call from the attorney, and believes that the attorney may be confusing another conversation the attorney had with her in an unrelated case. Indeed, counsel for the respondent has submitted an affidavit in which he states that he received a voice mail message from the ALJ on April 26, 2001, stating that she had not heard from the complainant and planned to dismiss his ERD case. April 26, 2001, is more than 20 days after the ALJ's April 2, 2001 certified letter was sent to the complainant.

cc: 
Attorney Lisa C. Paul
Attorney Gerald J. Mayhew

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uploaded 2001/10/22