JEFFREY SIMON, Complainant

EMMPAK FOODS, 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 May 16, 2005
simonje . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

On April 6, 2005, the ALJ issued a decision affirming the division's January 13, 2005 order dismissing the complainant's complaint because he failed to respond to a certified letter within twenty days.

The case file shows that previously on November 12, 2004, an equal rights officer (ERO) of the ERD had sent a letter to the complainant, enclosing a copy of the respondent's answer to his complaint, and stating that it was necessary for him to provide a written response to the information provided by the respondent. The ERO asked that the complainant include in his response any information that he believed supported his complaint. In addition, the ERO asked the complainant to provide the names and home addresses of any supportive witnesses, in particular those individuals who had expressed to him a willingness to support the complaint. The ERO requested that the complainant respond within 20 days of the date of his letter.

Subsequently, on December 8, 2004, the ERO sent a certified letter to the complainant stating that attempts to obtain information from him had been unsuccessful and that it was necessary for him to cooperate in the investigation of his complaint. This letter further advised the complainant that this would be his last opportunity to respond to the ERO's November 12 letter, and that if the ERO did not hear from him within 20 days of the date of the December 8 letter the division would dismiss his complaint.

The complainant's failure to respond to the ERO's December 8 letter within 20 days of that letter resulted in the division's January 13, 2005 dismissal order.

The ALJ states in his decision that the complainant has stated no reason for his failure to respond to the division's attempts to obtain information from him. However, in correspondence from the complainant received by the division on February 3, the complainant apparently asserts that the reason for his failure to respond to the division's earlier attempts to obtain information from him was "Because of some lost paper work and me being out of town for the holidays." However, this fact does not result in a different outcome than that reached by the ALJ. Wisconsin Statute § 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."

The statute does not allow for any exceptions for a complainant's failure to timely respond to department correspondence and requires the dismissal of the complaint when the complainant fails to respond within 20 days to correspondence from the department concerning the complaint sent by certified mail to the complainant's last-known address. Hernandez v. Spanish Centers of Racine, Kenosha & Walworth Inc. (LIRC, 01/23/02]; Manning v. INX Internat'l. Ink Co. (LIRC, 03/17/00).

The ERO's December 8, 2004 certified letter was sent to the complainant at his last known address. Further, this correspondence was purposeful and required the complainant to answer questions the division needed to have answered. Palmer v. Wisconsin Public Service Corp. (LIRC, 07/30/03); Frederick v. Initial Security (LIRC, 08/28/03).

Accordingly, the commission has affirmed the administrative law judge's decision in this matter.

cc:
Kenneth R. Fleming
Corporate ER/EEO Manager

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uploaded 2005/05/31