RUBY CONARD, Complainant
A L SCHUTZMAN COMPANY, 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
January 15, 2014
conraru_rsd . doc : 107 : 5 746
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
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 department's May 20th letter qualified as a letter requiring a response under Wis. Stat. § 111.39(3) because it was mailed by certified mail to the complainant's last known address, and was a letter "concerning the complaint." A letter concerns the complaint if it has the purpose of seeking information needed by the Equal Rights Division (ERD) to process and decide the case, to advance the goal of efficiently managing caseload, or otherwise to advance the interests of administrative justice. Palmer v. Wisconsin Public Service Corporation, ERD Case No. CR200201890 (LIRC July 30, 2003). The purpose of the May 20th letter was to ask whether the complainant wanted to have the ERD conduct an independent investigation of her complaint after it had been dismissed by the EEOC. The commission has recognized this as the kind of inquiry that would qualify under § 111.39(3) as correspondence triggering the complainant's responsibility to respond within 20 days. Wren v. Columbia St. Mary's Hospital, ERD Case No. 200402125 (LIRC Nov. 26, 2004); Hobson v. USA Security, ERD Case No. 200702504 (LIRC Jan. 31, 2008); Bailey v. Target Stores, ERD Case No. CR200703486 (LIRC Oct. 22, 2010).
As recounted in the ALJ's decision, the department sent two copies of the May 20th letter to the complainant's last known address, one by regular mail and one by certified mail, with a return envelope enclosed to use for a response, advising the complainant to respond no later than June 10, 2013 if she wanted the ERD to conduct an investigation, and that the failure of the ERD to receive her response by June 10th would result in a dismissal of the case. No response was received by June 10th, and the department issued a notice of dismissal on June 14, 2013.
The complainant wrote a letter dated June 18, 2013 appealing the dismissal. It was received by the ERD on June 26th. The ALJ upheld the department's dismissal, noting that the complainant failed to provide an explanation as to why she did not respond to the department's May 20th letter within 20 days, and noting that there was nothing else in the record of the case to suggest that her failure to respond resulted from circumstances outside her control.
In her petition to the commission, the complainant explained why she did not send a timely response to the department's May 20th letter. The petition (with no editorial changes) reads in part:
During the month of May an June there were issue with the mail man entry key to the building. If his key could not open the door then no mail was deliver. Upon noticing that I was not receiving any mail I call the post office they inform me no mail would be deliver until the owner fix the key box that they had made attempts and the mail person could not enter the building and the landlord would have to call when repairs were completed. Not that I neglected the notice. So when I finally get one of the letters it is about a week before the twenty days to return it.
I sign the letter put in the mail box thinking it was a pre stamp one and the letter was return with postage due. Now I am thinking that was it until I receive the final appeal letter. Now here I am with another appeal letter which was post mark Dec. 6, 2013 and I didn't get it until Dec. 11, 2013.
It is apparent that the letter the complainant acknowledges receiving "a week before the twenty days to return it" was the department's May 20th letter. (1) It was the only letter mailed to the complainant by the department that asked for a response within 20 days and included a return envelope. The complainant indicated that she signed the letter and mailed it without putting postage on it, so it was returned to her.
The fact that the complainant received the department's May 20th letter in time for her to make a timely response, but did not do so because she neglected to put postage on the response, rules out the need for further proceedings in this matter. There are cases in which an opportunity should be given to the complainant to have an evidentiary hearing to try to show that he or she was not at fault in failing to make a timely response, but in those cases it was plausible that, based on the complainant's assertions, the complainant was not at fault. See, Laboy v. Mantissa Corp., ERD Case No. CR20100830 (LIRC Mar. 21, 2012); Peterson v. K-Mart, ERD Case No. 9000431 (LIRC May 24, 1991); McGee v. County of Milwaukee, ERD Case No. CR200503166 (LIRC Aug. 18. 2006); Bailey v. Target Stores, ERD Case No. CR200703486 (LIRC CR200703486 (LIRC Oct. 22, 2010). It is not plausible in this case, because the complainant failed to make a timely response even though it was within her control to do so. See, Johnson v. Badger Meter, ERD Case No. 200404168 (LIRC July 29, 2005).
cc:
Attorney Mary Pat Jacoby
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