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

RODNEY EDWARD SALINAS, Complainant

(UNKNOWN), Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200500501


On April 28, 2005, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision affirming a March 14, 2005 "Preliminary Determination" issued by the division. The March 14 "Preliminary Determination" had dismissed the complainant's "complaint," stating that "[He] did not provide the complete name, address and telephone number of the Respondent."

On May 4, 2005, the complainant filed a timely petition for review of the ALJ's decision.

Based upon its review of this matter, for reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission issues the following:

DECISION

The decision of the administrative law judge is set aside as the Division had no authority to issue a preliminary determination dismissing the complainant's "complaint." The complainant's petition for review is dismissed because the Division is processing his complaint. Also, the Department of Corrections/Winnebago Correctional Center is not a proper party to this matter and is hereby dismissed as a party.

Dated and mailed May 27, 2005
salinro . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In a letter to the Milwaukee Equal Rights Division office received by that office on February 2, 2005, the complainant stated why he felt he had been discriminated against by an unnamed employer and requested a "Discrimination Complaint form, Fair Employment Laws Packet along with anyother (sic) information on proper procedures to filing a complaint." On February 7, 2005, the Milwaukee ERD office sent a complaint form to the complainant requesting that various information, including the respondent's name, address and telephone number, be provided, and informing him that the complaint form had to be returned within 10 days of the February 7 dated letter.

The complaint form sent to the complainant included instructions to mail the complaint to the Milwaukee ERD's office "for violations in Milwaukee, Waukesha, Ozaukee, Washington, Kenosha, Racine, Sheboygan and Walworth Counties," and to the Madison ERD office for all other counties in Wisconsin. The complainant completed the complaint form with the information requested. The complaint identified the respondent as Lamico, Inc., and listed the respondent's address in Oshkosh, Wisconsin. The complainant's complaint was received by the division on February 10, 2005. The complainant evidently correctly followed the mailing instructions shown on the complaint because since February 10 the Madison ERD has been handling the processing of his complaint.

However, the Milwaukee ERD office was apparently unaware that the complainant had filed his complaint with the Madison office on February 10 and that that office was handling his complaint. Consequently, when the Milwaukee office had not received the complaint form sent to the complainant on February 7 back from the complainant, the Milwaukee ERD issued a "Preliminary Determination" on March 14, 2005, dismissing the complainant's "complaint." The Milwaukee ERD did not have the authority to issue a preliminary determination dismissing the complainant's "complaint", however. Wisconsin Administrative Code § 218.05 authorizes the department to issue a preliminary determination dismissing a complaint when it has been determined that it fails to meet the following requirements:

(a) Whether the complainant is protected by the act.

(b) Whether the respondent is subject to the act.

(c) Whether the complaint states a claim for relief under the act.

(d)  Whether the complaint was filed within the time period set forth in the act, if that issue is raised in writing by the respondent.

None of these concerns were at issue in connection with the letter the complainant filed with the Milwaukee ERD on February 2, 2005.

Additionally, by virtue of Wis. Stat. § 111.39(3), the division had the authority to issue an order dismissing 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." (Emphasis added.) However, the February 7 correspondence from the department had not been sent to the complainant by certified mail. (Furthermore, his complaint had been received at the Madison office three days after the February 7 department correspondence.)

The complainant filed an appeal from the March 14 "Preliminary Determination" dismissing his complaint. The complainant was an inmate at the Winnebago Correctional Center in Winnebago, Wisconsin enrolled in a work release program when employed at Lamico, Inc. He listed the Winnebago Correctional Center as his address on his February 2 correspondence and the complaint he sent to the division. However, after receiving the complainant's appeal, the division sent a letter out under the Hearing and Mediation Chief's name (Pamela Rasche) which listed not Lamico, Inc., but the Winnebago Correctional Center as the respondent in this matter. Terri Rees on behalf of the Department of Corrections has now twice written in correctly stating that the Department of Corrections/Winnebago Corrections Center is not the complainant's employer and not a proper party in this matter.

Based on the above, the commission has set aside the administrative law judge's decision affirming the division's preliminary determination dismissing the complainant's complaint, dismissed the complainant's petition and dismissed the Department of Corrections/Winnebago Correctional Center as a party.

cc: Terri A. Rees


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uploaded 2005/05/31