P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RONALD O ROGERS, Complainant


ERD Case No. CR200002066, EEOC Case No. 260990779


Ronald Rogers filed a charge of discrimination against the respondent with the EEOC on August 30, 1999, alleging race discrimination with respect to his termination of employment in violation of Title VII. Rogers' charge of discrimination, which was cross-filed with the ERD, was processed initially by the EEOC and dismissed by the EEOC on December 16, 1999, with notice of his right to file a lawsuit against the respondent in court. Rogers then commenced an action under Title VII in federal district court alleging discrimination on the basis of race with respect to his termination of employment. On October 30, 2000, the district court granted the respondent's summary judgment motion on Rogers' discrimination claim. Rogers then filed an appeal with the Court of Appeals for the Seventh Circuit, but his appeal was dismissed on February 27, 2001, for failure, after receiving an extension of time, to file the required docketing statement.

Over three years later on October 14, 2004, an ERD Program Assistant sent a letter by certified mail to Rogers' last known address concerning his ERD charge of discrimination. The letter noted that the ERD had had Rogers' case in abeyance status for an extended period of time while he pursued the matter in another forum. The letter indicated that if this matter had been resolved Rogers should sign at the bottom of the letter where the statement "My case has been resolved. Please close my case." appeared, or, if he wanted the matter to remain open to send a letter explaining his reasons for requesting that it remain open. Further, the letter advised Rogers that if a response to the October 14 letter was not received by November 3, 2004, his case would be dismissed pursuant to section 111.39(3), Wis. Stats.

The October 14, 2004 certified letter sent to Rogers was received back at the ERD on November 4, 2004. Based upon information appearing on the certified letter, the Post Office had left notice of the attempted certified mail delivery at Rogers' address on October 16 and 21, 2004, before returning the certified mail to the ERD.

On November 8, 2004, the department issued a "Notice of Dismissal-Investigation," which dismissed Rogers' complaint for failure to respond to a certified letter within the specified time. Rogers, who had 20 days in which to file an appeal, filed a timely appeal on November 16 asserting that the ERD's November 4, 2004 letter was the first that he knew about a certified letter for him. Rogers asserted that the reason was, "I live with my mom and she gets the mail while I'm at work, and when she received the certified letter slip she misplaced it. Therefore I had no idea I had a letter from you." Rogers requested to have another chance to have his case investigated.

In response to Rogers' appeal, the respondent submitted written argument to the ALJ requesting that the dismissal of Rogers' complaint be affirmed pursuant to Wis. Stat. § 111.39(3) because he did not respond within 20 days to certified correspondence from the ERD concerning his complaint. Alternatively, the respondent argued that the doctrine of issue preclusion barred Rogers from relitigating his race discrimination claim before the ERD. Citing Palmer v. Wisconsin Public Service Corp. (LIRC, 07/30/03), the respondent argued that the ERD's October 14, 2004 certified mail expressly stated that a response was necessary by November 3, 2004, and posed a question that the department needed to have answered, namely, an update on the status of Rogers' federal case and whether he wanted to keep his ERD charge open considering that the ERD had not heard from Rogers in years. Further, the respondent noted that Rogers' excuse that "his mother misplaced his certified correspondence from the department" was insufficient to avoid dismissal under § 111.39(3). Alternatively, citing Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993) and Taylor v. St. Michael Hospital (LIRC, 05/31/01), the respondent argued that Rogers was barred by the doctrine of issue preclusion from pursuing his complaint before the ERD as his state law race discrimination claim arises out of the same facts as his fully litigated unsuccessful Title VII race discrimination claim.

The ALJ concluded that the commission's decisions in Palmer v. Wisconsin Public Service Corp. (LIRC, 07/30/03) and Frederick v. Initial Security (LIRC, 08/28/03), prevented affirming the department's dismissal under § 111.39(3), but that Rogers' complaint could nevertheless be dismissed on the grounds of issue preclusion. Accordingly, the ALJ ordered the dismissal of Rogers' complaint on the grounds of issue preclusion.

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


Rogers' complaint is dismissed pursuant to § 111.39(3), Wis. Stats., due to his failure to respond within 20 days to correspondence from the department concerning his complaint sent by certified mail to his last known address.

Dated and mailed December 22, 2005
rogerro2 . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Section 111.39(3) of the Wisconsin Statutes 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 the Palmer and Frederick cases, supra, the commission held that the language "correspondence from the department concerning the complaint" required that the correspondence be purposeful, asking a question the department needs to know the answer to in order to warrant dismissal under § 111.39(3) Stats. In those cases, certified mail (20-day letters) had been sent to the complainants after the ERD had issued notices of hearings on the complainants' claims. There had been no particular reason evident for the 20-day letter inquiries. In Palmer and Frederick the commission contrasted the situation presented in those cases with McCarter v. Johnson Controls (LIRC, 05/01/93), where the commission upheld a dismissal of a complaint under § 111.39(3) because the circumstances there gave the department reason to seek confirmation from the complainant of her intention to go forward with the matter. In McCarter, the investigation (apparently the initial investigation by the department) had been extraordinarily delayed because of the complainant's failure, despite numerous requests, to file a written statement of position.

The underlying decision herein states that Palmer and Frederick "in essence appear to suggest as a practical matter that in most instances the ERD, prior to sending a certified mail (20-day) letter under sec. 111.39(3), Wis. Stats., will have had to at some point have made some attempt to contact the Complainant by means other than certified mail (and without the jeopardy of dismissal for failure to respond.)" The decision notes that in this case, after the Dismissal and Notice of Rights issued by the EEOC on September 16, 1999, and the dismissal of his federal lawsuit by the court of appeals on February 27, 2001, it appears that the only action taken by the ERD was to send out the certified mail letter dated October 14, 2004.

The commission concludes that dismissal of Rogers' complaint under § 111.39(3), Stats., is appropriate because the department's October 14, 2004 certified letter sent to Rogers met the Palmer/Frederick requirement of "purposeful correspondence, asking a question which the department needed to know the answer to."

The problem that the commission sought to correct in issuing the Palmer and Frederick decisions was the practice of routinely sending correspondence by certified mail to complainants requiring a response within 20 days about their intent to appear at their scheduled hearing when there had been no particular reason to have asked the complainants to contact the department regarding their intention to appear for the hearing. That type of situation is not presented in the instant case. The correspondence from the department concerning Rogers' complaint sent to Rogers was purposeful correspondence. Rogers' EEOC charge of discrimination alleging a violation of Title VII was cross-filed with the ERD, but initially pursued under federal law. The department did not know the status of Rogers' federal claim. The department could not be expected to defer action on Rogers' case indefinitely. Indeed, after more than three years' time, the department needed to hear from Rogers as to his intentions regarding his ERD claim.

The commission did acknowledge in Frederick that shortcomings were possible with the use of certified mail. (1)   Whatever shortcomings the use of certified mail may present, however, § 111.39(3) Stats., requires dismissal of the complaint where a complainant fails to respond to correspondence from the department concerning the complaint sent via certified mail.

In Wilson v. LIRC and New Horizon Center, Inc., Case No. 01CV006492 (Milw. Co. Cir. Ct., Jan. 11, 2002), the court noted that the primary purpose behind the requirement of certified mail is to ensure delivery and to easily determine the date of delivery (citing Patterson v. Board of Regents of the University of Wisconsin, 103 Wis. 2d 358, 360 (Ct. App. 1981). In Wilson, the court reversed the commission's affirmance of an ALJ's decision dismissing the complainant's complaint on the grounds that he failed to respond to a certified letter because of error by the Post Office in delivering the certified mail. There, the court acknowledged the statute's requirement that the department use certified mail, but ruled that if the Legislature requires the use of certified mail to ensure delivery, the intent of section 111.39(3) Stats., was frustrated when a certified letter with the correct address is not delivered to that address.

The existence of error on the part of the Post Office in delivery of the department's certified mail to Rogers is not present in the instant case. Rogers' explanation for failing to respond timely to the department's certified mail is that his mother had misplaced the certified letter slip left by the Post Office. Section 111.39(3) applies, however, even where compelling personal circumstances exist. Manning v. INX Intern'l Ink Co. (LIRC, 03/17/00)(dismissal affirmed under 111.39(3) where complainant asserted he did not receive certified mail because he was in jail and his wife failed to inform him about it because she was under duress due to her son's recent death.)

Finally, in at least two other cases since the Palmer and Frederick cases (Hewitt v. Cable Constructors (LIRC, 09/29/04) and Johnson v. Badger Meter (LIRC, 07/29/05), the commission has affirmed dismissals of complainants' complaints under § 111.39(3) for failure to respond to ERD 20-day certified letters sent to the complainants after the EEOC's dismissal of their complaints, where it appears that the only action taken by the ERD was to send out certified mail letters to the complainants inquiring if they wanted an independent review of their discrimination claim by the ERD.

For all of the above-stated reasons, the commission concludes that dismissal of Rogers' complaint under § 111.39(3) was appropriate.

Although concluding that dismissal of Rogers' complaint under § 111.39(3) could not be upheld under Palmer and Frederick, the ALJ concluded that dismissal of Rogers' complaint was warranted because the federal court judgment on his race discrimination claim precluded him from relitigating this claim before the ERD. The commission concludes that the preclusive effect of the federal court judgment on Rogers' race discrimination complaint provided an additional basis for the dismissal of his ERD complaint.

The ALJ correctly notes that the commission's decision in Taylor indicates that federal judgments do not have claim preclusive effect on WFEA claims. The Taylor decision is in error to the extent that it holds that federal judgments on claims that could generally be brought under both state and federal anti-discrimination statutes do not have claim preclusive effect on WFEA claims. See for example, Reed v. Great Lakes Company, Inc. (LIRC, 11/21/05). The Wisconsin Supreme Court has noted the following about claim preclusion:

The doctrine of claim preclusion provides that a final judgment on the merits in one action bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences. When the doctrine of claim preclusion is applied, a final judgment on the merits will ordinarily bar all matters "which were litigated or which might have been litigated in the former proceedings."
In Wisconsin, the doctrine of claim preclusion has three elements: "(1) identity between the parties or their privies in the prior and present suits; (2) prior litigation resulted in a final judgment on the merits by a court with jurisdiction; and (3) identity of the causes of action in the two suits."

Kruckenberg v. Harvey, 2005 WI 43, s 19, 21, 279 Wis. 2d 520, 694 N.W.2d 879.

All of the elements required for application of claim preclusion on Rogers' claim of race discrimination before the ERD are satisfied. Rogers and Wisconsin Knife Works were the parties in the prior federal court action and are the parties in the instant ERD case. The prior federal court litigation resulted in a final judgment on the merits of Rogers' race discrimination claim which he could have and did pursue in federal court. A summary judgment in favor of the defendant is sufficient to meet the requirement of a conclusive and final judgment. Landess v. Schmidt, 115 Wis. 2d 186, 191, 340 N.W.2d 213 (Ct. App. 1983). Finally, since Rogers' ERD claim of race discrimination is based on the same facts underlying his federal court action - that he was discharged as a result of a fight that he had not instigated while two white workers that had gotten into a fight were only suspended and were not discharged - an identity of the causes of action or claims exists between his action in federal court and the instant ERD claim.

Unlike claim preclusion, which may bar all matters "which were litigated or which might have been litigated in the former proceedings", an element of issue preclusion is that the issue was actually litigated in a prior action. Kruckenberg, 2005 WI 43, 19 n.13. As correctly noted in the Taylor decision quoted by the ALJ:

A "fundamental fairness" standard exists when applying issue preclusion and requires consideration of the following factors: "(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel [issue preclusion] to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?"

All of the requirements for application of issue preclusion have been met. Rogers had an opportunity to obtain appellate review of the district court's adverse determination on his claim of race discrimination. Rogers' claims in both his federal court action and his claim before the ERD are exactly the same. There was no significant difference between the quality and extensiveness of proceedings available in federal court and before the ERD. The burdens of persuasion are essentially the same since in both forums the McDonnell Douglas (2) burden-shifting analysis is utilized to prove a claim of race discrimination. (3)   Finally, Rogers' attempt to relitigate his unsuccessful Title VII race discrimination claim in federal court is precisely appropriate for application of issue preclusion as he had a full and fair opportunity to litigate his discrimination claim in federal court.

cc: Attorney Neil B. Stekloff

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(1)( Back ) The commission believes that the best practice is to send such notification via regular and certified mail. It is the method most likely to provide notice to the complainant. After all, all other important correspondence from the department -- investigatory requests for information, notice of hearing, etc. -- is sent via regular mail.

(2)( Back ) McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

(3)( Back ) As noted by the respondent, in granting Wisconsin Knife Works (WKW) summary judgment, the federal district court found that: (1) Rogers could not demonstrate that he was meeting WKW's legitimate expectations for his position; (2) Rogers could not identify any similarly situated white employees who WKW treated more favorably than him and, thus; (3) "no reasonable factfinder could believe that [the WKW decisionmaker] lied when he stated that he fired [Rogers] for actively participating in a fight."


uploaded 2006/01/03