Wis.LIRC ER Decision: Soto, Marcelino - June 27, 2014 - 229 -Under Public Accommodations Act, unlike Fair Employment Act, there is no statutory provision for dismissal of complaint for failure to respond to ERD letter; instead, there is only an administrative rule -- and it provides that ERD 'may' dismiss for non-response (unlike provision in WFEA, which states 'shall') -- thus under Pub. Accom. Act, dismissal for non-response requires exercise of discretion -- ALJ failed to exercise discretion here, therefore matter is remanded for reconsideration under correct standard

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

MARCELINO SOTO, Complainant

MENARDS INC, Respondent

PUBLIC ACCOMMODATION DECISION
ERD Case No. CR201301496

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a "Decision and Order of Appeal of 20-Day Order of Dismissal" in this matter on March 14, 2014. A timely petition for review was filed.(1 )

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

ORDER
The March14, 2014 Decision and Order of Appeal of 20-Day Order of Dismissal is set aside, and the case is remanded to an ALJ for the Equal Rights Division for a new decision based on the applicable legal standard in Wis. Admin. Code § DWD 221.07, which states:

Complainant's duty to respond to correspondence from the department. The department may dismiss the complaint if the complainant fails to respond to the department within 20 days from the date of mailing of any correspondence from the department concerning the complaint, provided that such correspondence was sent by certified mail, return receipt requested, to the last known address of the complainant.

Because the standard for dismissal is permissive rather than mandatory, the department's new decision shall be an exercise of discretion, for which the department must examine the relevant facts, and demonstrate a rational process of applying the legal standard to the facts. See Loy v. Bunderson, 107 Wis.2d 400, 415, 320 N.W.2d 175 (1982). If the new decision does not dismiss the complaint, the ALJ shall set aside the department's Order and Notice of Dismissal - Investigation, issued on November 15, 2013, and remand the matter for a resumption of investigative proceedings before the department. If the new decision dismisses the complaint, it shall be issued with a notice of appeal rights as set out in Wis. Stat. § 106.52(4)(b).

Dated and mailed June 27, 2014

sotomar_rpr.doc : 107 : 229

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The file in this matter shows that the investigator assigned to this case sent a letter to the complainant's last known address dated September 26, 2013, asking the complainant to respond to information provided by the respondent concerning the merits of the complaint. The file does not show that the complainant filed an answer to this letter. The file further shows that on October 25, 2013 the investigator sent a letter by certified mail to the complainant's last known address, advising him that if she did not hear from the complainant within 20 days of the date of the letter, the complaint would be dismissed. There is a post office receipt in the file showing delivery of this letter on October 26, 2013. The signature on the receipt is illegible to the commission, but does not appear to be the signature of the complainant. Finally, there is no indication of any response by the complainant, or anyone on behalf of the complainant, to the October 26th letter.

In his petition for review by the commission, the complainant indicates that he had to leave the country because of family problems during the 20-day period he was given for responding to the October 26th letter from the ERD investigator, and that he did not know that he was going to receive a letter that he had to answer during his travels. The exact dates of the complainant's trip, and the specific reasons for the trip, are not known; nor is it known who signed for receipt of the 20-day letter, or what if anything was done about the letter after it was received. These facts, and probably more, would appear to be relevant to determining whether, under Wis. Admin. Code § DWD 221.07, dismissal of the complaint was an appropriate consequence for the complainant's failure to timely respond to the 20-day letter.

In his review of the department's dismissal, the ALJ did not engage in any fact-gathering. This would have been appropriate if the legal standard had mandated dismissal for failure to respond to a 20-day letter from the department. Under the Wisconsin Fair Employment Act (WFEA), for instance, dismissal is required if the case file shows delivery of purposeful correspondence to the complainant's last-known address, and no timely response by the complainant. Johnson v. Badger Meter, ERD Case No. 200404168 (LIRC July 29, 2005); Wis. Stat. § 111.39(3). This was the standard applied by the ALJ. Unfortunately, this case arose under the Wisconsin Public Accommodations and Amusements Act (WPAA), not the Fair Employment Act. The WPAA has no provision comparable to Wis. Stat. § 111.39(3). Instead, the authority to close a case for failure to respond to a 20-day letter is set out in an administrative rule. Wis. Admin. Code § DWD 221.07. The language of the rule differs in a crucial respect from the language of Wis. Stat. § 111.39(3), in that it states that the department "may" dismiss, whereas the WFEA provision says the department "shall" dismiss. Generally, in construing statutes, "may" is construed as permissive and "shall" is construed as mandatory unless a different construction is demanded by statute. State of Wisconsin v. Camara, 28 Wis.2d 365, 371, 137 N.W.2d 1 (1965). Therefore, the decision to dismiss is a matter of discretion for the department to exercise. Id.

In review of a discretionary matter, the issue for the commission is whether the department abused its discretion. Under this standard, the question is whether the department "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, supra; Reed v. Heiser Ford, Inc., ERD Case No. 200504107 (LIRC May 31, 2013). By applying the mandatory dismissal provision of Wis. Stat. § 111.39(3), the ALJ failed to apply the proper standard of law, and because of that, the commission is unable to determine whether the department properly exercised its permissive authority to dismiss. The matter is remanded to allow the department to reconsider its decision under the correct standard.

cc: Attorney James McMenomy

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Footnotes:

(1)( Back ) The Notice of Appeal Rights that was issued along with the ALJ's decision incorrectly advised that a party adversely affected may seek judicial review of the ALJ's decision. Petitions for review of decisions of hearing examiners in cases under the Wisconsin Public Accommodation or Amusement Law, Wis. Stat. § 106.52, are to be filed with the department for review by the commission. Wis. Stat. § 106.52(4)(b). Despite the incorrect notice, the petitioner filed a timely request for commission review with the department.

uploaded 2014/08/22