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



ERD Case No. CR200402915

This case arises out of a charge of disability discrimination and fair employment retaliation. This charge was originally filed with the EEOC, which conducted an investigation, and, on November 22, 2004, notified the parties that it was closing its file.

In correspondence received on January 14, 2005, complainant filed a timely request that the Equal Rights Division (ERD) do an independent investigation of her charge.

An ERD investigator issued a no probable cause initial determination (ID) on April 14, 2005. The complainant filed a timely appeal of this ID.

On July 27, 2005, ERD received notice that complainant was now represented by counsel.

On September 5, 2005, respondent SBC filed a motion to dismiss, arguing that, since complainant had failed to disclose her EEOC/ERD charge to the bankruptcy court processing her Chapter 7 action, she was judicially estopped from further prosecuting her charge before ERD. A briefing schedule was established, and complainant's brief was due November 4, 2005.

On October 4, 2005, based on complainant's attorney's request that her federal FMLA action be withdrawn, the federal court for the eastern district of Wisconsin dismissed that action without prejudice.

Complainant's attorney did not file a request that the complainant's action before ERD be dismissed.

Effective October 28, 2005, complainant's attorney withdrew as her counsel.

In a letter dated and mailed to the complainant on Monday, October 31, 2005, the assigned administrative law judge (ALJ), citing Wis. Stat. § 111.39(3), stated that, "If you wish to pursue your complaint, you have twenty days to respond to SBC's motion to dismiss." The ALJ enclosed a "Request to Withdraw Complaint" form.

The deadline for such a response would have been November 21 since November 20 was a Sunday.

The complainant's response to the motion was sent and received through facsimile transmission on November 23, 2005.

On November 25, 2005, the ALJ dismissed the complainant's charge pursuant to Wis. Stat. § 111.39(3) for filing her response after the deadline.

On December 15, 2005, the complainant filed a timely appeal of this dismissal.

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 Palmer v. Wisconsin Public Service Corp., ERD Case No. CR200201890 (LIRC July 30, 2003), and Frederick v. Initial Security, ERD Case No. CR200202997 (LIRC Aug. 28, 2003), the commission held that the language "correspondence from the department concerning the complaint" in this provision required that the correspondence be purposeful, requesting information the department needed in order to continue processing the complainant's charge. In Palmer and Frederick, the ALJ, as a matter of routine, and without provocation, after hearing notices were issued, sent 20-day letters to the unrepresented complainants requiring them to affirmatively indicate by the deadline whether they intended to proceed to hearing or their charges would be dismissed. The commission held that such correspondence was not purposeful within the meaning of Wis. Stat. § 111.39(3).

Since Palmer and Frederick, the commission has found the following correspondence to be purposeful:

(a) after the complainant had contacted the department by phone to determine whether she was required to attend the hearing, the ALJ sent her a 20-day letter asking whether she intended to appear (Rollins v. Olympic Family Restaurant, ERD Case No. CR200304114 (LIRC Sept. 30, 2004));

(b) after the complainant had failed to respond to a request for a written response to the respondent's answer, the ERD investigator sent him a 20-day letter asking whether he intended to pursue his charge (Simon v. Emmpak Foods, ERD Case No. CR200403862 (LIRC May 16, 2005);

(c) after the complainant's case had been held in abeyance for five years at his request while he pursued a federal remedy, ERD sent him a 20-day letter requesting a status update (Rogers v. Wisconsin Knife Works, ERD Case No. CR200002066 (LIRC Dec. 22, 2005); and

(d) after the EEOC had dismissed his charge, an ERD investigator sent the complainant a 20-day letter asking whether he wanted ERD to do an independent investigation (Johnson v. Badger Meter, ERD Case No. 200404168 (LIRC July 29, 2005)).

In Palmer, supra., the commission characterized the ALJ's 20-day letter in McCarter v. Johnson Controls (LIRC May 21, 1983) as purposeful since it had been reasonable for the ALJ to question the complainant's intent to proceed to hearing in view of her numerous failures to respond to the department's requests that she file a written statement of position.

The commission first notes that the ALJ's letter was confusing. It may not have been clear to the complainant whether she needed to file her brief on the motion to dismiss within the 20-day period in order to keep her charge alive or whether she simply needed to indicate her intent to proceed in order to do so.

In addition, it appears that the only factor triggering the ALJ's 20-day letter, which in effect asked the complainant whether she intended to continue to prosecute her charge, was the withdrawal of complainant's counsel. There was insufficient justification for the ALJ to make this inquiry of the complainant. Even when she was unrepresented, the complainant had fully participated in the processing of her charge, and had timely responded to the department's requests for information and for action on her part. There was nothing in the file to indicate that the complainant had made any statements or other communications, either to ERD or to the respondent, suggesting that she was thinking of abandoning her ERD case. See, Frederick, supra. In fact, her counsel's withdrawal in October of complainant's federal FMLA case but not her WFEA case seems to underscore that she had no intention of doing so. As a result, her new status as an unrepresented complainant alone, although reasonably justifying a modification to the briefing schedule on the motion to dismiss then before the ALJ, would not render the ALJ's 20-day letter purposeful. All parties, whether or not represented by counsel, should be accorded a full and fair opportunity to participate in the hearing process.


The decision and order of the administrative law judge dismissing the complaint in this matter is reversed, and this matter is remanded to the department for further proceedings.

Dated and mailed February 9, 2006
starkch . rrr : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Laura A. Lindner

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uploaded 2006/02/09