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

GAYLE MARIE NEIBAUER, Complainant

BURGER KING, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200400368, EEOC Case No. 26GA400611

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued an order of dismissal 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 information that was before the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in the administrative law judge's order as its own.

DECISION

The order of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 22, 2005
neibaga . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that she did respond to the certified mail from the administrative law judge in the time period given, but that the administrative law judge did not receive her response. However, in a telephone conversation with the administrative law judge on November 8, 2004, the complainant indicated that she sent her response to the United States Equal Employment Opportunity Commission (EEOC), rather than the administrative law judge at the Equal Rights Division. The administrative law judge's letter clearly explained that the complainant was to contact the administrative law judge within twenty days if she wanted to pursue her complaint under state law and that, if she failed to do so, her discrimination complaint filed with the Equal Rights Division would be dismissed. A letter to the EEOC would not constitute a response to the administrative law judge's letter. The law provides that the department shall dismiss a complaint if the person filing the complaint fails to respond within twenty days to any correspondence from the department concerning the complaint, if the correspondence is sent by certified mail to the last-known address of the person. Wis. Stat. § 111.39(3). Where, as here, the department sent the complainant a letter by certified mail which concerned her complaint, and where the complainant failed to respond within the twenty days specified in the letter, her complaint must be dismissed. Accordingly, the administrative law judge's decision is affirmed.

cc: Attorney Teresa E. O'Halloran


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

uploaded 2005/03/25