TRAVIS LANCERIO, Complainant
GENESIS GROUP, Respondent
The complaint in this matter was filed on September 15, 2009, with the United States Equal Employment Opportunity Commission (hereinafter "EEOC"). Pursuant to a work sharing agreement between the EEOC and the State of Wisconsin Equal Rights Division (hereinafter "ERD"), the complaint was cross-filed with the ERD. However, because the work sharing agreement provides that a complaint is first processed by the agency that originally receives it, the ERD took no action pending investigation by the EEOC.
Upon completion of its investigation, the EEOC issued a determination on June 22, 2012, finding probable cause to believe that discrimination occurred. When informal conciliation failed, on October 18, 2012, the EEOC closed its file by issuing a right to sue letter.
On January 11, 2013, the complainant's attorney, Rebecca Salawdeh, sent a notice of retainer to the ERD and stated that the complainant wanted the ERD to conduct its own investigation. On February 27, 2013, six weeks after having received the letter from the complainant's attorney specifically indicating that the complainant wanted the ERD to continue with his case, the ERD sent the complainant a form asking him to indicate whether he wanted to continue with his case or whether he wanted to withdraw. The response was due by March 11, 2013. The complainant resent the January 11 letter along with the signed form, which was received by the ERD on March 4, 2013.
The ERD did not commence its investigation until January 16, 2014, at which time an investigator asked the respondent to provide a copy of the information it submitted to the EEOC within 20 days. The respondent requested and was granted an additional 20 days to provide its response. The respondent's information was received by the ERD on February 27, 2014.
On March 3, 2014, the investigator sent the complainant's attorney, Ms. Salawdeh, a letter requesting her response to the respondent's information by March 24. The complainant did not submit a response by that date. On March 31, 2014, the investigator sent Ms. Salawdeh a certified letter indicating that unless a response was received within 20 days the complaint would be dismissed. No copy of the letter was sent to the complainant.
On April 11, 2014, Ms. Salawdeh submitted a written response to the ERD. However, she inadvertently sent the letter to her own zip code, 53713, rather than to the ERD's zip code, 53703. The letter was returned to Ms. Salawdeh's office by the United States Postal Service on April 15. Ms. Salawdeh was away from the office on vacation at the time, but her secretary, Samantha Montie, notified her by e-mail of the letter's return. Ms. Salawdeh directed Ms. Montie to immediately resend the letter. On April 16, 2014, Ms. Montie readdressed the envelope using the correct zip code, and gave it to the mail carrier when he came to deliver mail to the building, as was her practice with outgoing mail.
On April 28, 2014, the ERD investigator issued an order dismissing the complaint for failure to respond to the 20-day letter. The complainant filed a timely appeal of that order. In the appeal, the complainant's attorney explained the circumstances surrounding the mailing of the response, as set forth above, and submitted copies of the e-mails between herself and Ms. Montie which support this version of events. Ms. Salawdeh stated that she had heard nothing to suggest the letter was not delivered and that she presumed it had arrived by April 18, 2014, within 20 days of the investigator's letter.
In a decision upholding the dismissal of the complaint an administrative law judge for the ERD explained, for the first time, that the ERD did not receive the complainant's response to the certified letter until April 24, 2014, prior to the dismissal of the complaint, but after the 20-day response period had elapsed. The complainant filed a timely petition for commission review of that decision.
Discussion
The administrative rules provide, in relevant part:
DISMISSAL OF COMPLAINT PRIOR TO COMPLETION OF INVESTIGATION. (a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:
1. The complainant has failed to respond to correspondence from the department concerning the complaint within 20 days after the correspondence was sent by certified mail to the last-known address of the person filing the complaint, in accordance with the provisions of s. 111.39(3), Stats.
Wis. Admin. Code § DWD 218.06(3)(a)1.
The statute provides:
"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."
Wis. Stat. § 111.39(3)(emphasis added).
In affirming the preliminary determination dismissing the complaint, the administrative law judge stated:
"...The Division did not receive the letter until April 24, 2014. The Complainant could have provided a timely response in this case by avoiding the initial error in addressing the response, by employing a courier service to hand-deliver the response, by expediting the mailing, or by faxing a response to the Division. With no legitimate reason for failing to respond to the Division's certified letter within the 20 day period, the Preliminary Determination in this matter must be affirmed."
The commission disagrees with the administrative law judge's analysis for a variety of reasons.
To begin with, the statutory requirement of dismissal is mandatory if the response is late, and the commission has routinely held that the so-called "20-day statute" does not allow for any exceptions, even where the complainant had a good reason for failing to comply. See, Reed v. Innovative Health and Fitness, ERD Case No. CR200403483 (LIRC July 15, 2005), and cases cited therein. Consequently, the question of whether or not the complainant had a "legitimate reason" (1) for failing to file a timely response has no bearing on the outcome of this case.
However, it is not necessary to resolve this matter on the basis of whether or not the complainant could have a "legitimate reason" for failing to file a timely response, since the evidence in fact indicates that the complainant did respond in a timely manner. It is well established that the mailing of a document creates a rebuttable presumption that it was delivered and received. State ex rel. Flores, 183 Wis. 2d 587, 612, 516 N.W.2d 362 (1994); Mullen v. Braatz, 179 Wis. 2d 749, 753, 508 N.W.2d 446 (Ct. App. 1993). The presumption is that the mailed item reached its destination "in usual time," Hagner v. United States, 285 U.S. 427, 430, 52 S. Ct. 417, 418 (1932), cited in State ex rel. Flores, supra, and was delivered "in due course," Bursack v. Davis, 199 Wis. 115, 123, 225 N.W. 738 (1929).
In this case, the complainant has presented evidence in the form of signed affidavits from his attorney and her secretary indicating that the letter was mailed on April 16, 2014. The complainant's attorney has contended that a letter mailed from her office to the ERD in downtown Milwaukee would generally arrive within two days, and the commission considers this to be a reasonable proposition. Given those circumstances, it can be presumed that the complainant's letter would have been delivered by April 19, the deadline in which to respond to the investigator's letter. While the presumption of timely receipt can be rebutted by credible evidence of non-receipt, the ERD did not present such evidence. It did not retain the envelope in which the letter arrived, and the commission is unpersuaded that the agency's April 24, 2014 internal date stamp accurately reflects the date of receipt. Because the presumption that the complainant's response was received "in due course" has not been rebutted, the commission concludes that the complainant's response was received within 20 days of the investigator's letter.
Finally, the commission notes that there is yet another basis for setting aside the dismissal of this case. The certified letter was sent only to the complainant's attorney and not to the complainant himself. The commission has held that, because the 20-day rule and statute both specifically state that the correspondence must be sent to the last known address "of the person filing the complaint," it is not adequate that the letter be sent only to the complainant's attorney. Jorsch v. Graphic Communications Inc., ERD Case No. CR200401124 (LIRC Oct. 15, 2004). "While the complainant's attorney may have been authorized to represent the complainant in this matter, and the commission has routinely held that parties are bound by the acts of their agents, the statute and rule nonetheless do not contemplate dismissal under these circumstances." Id. Because the threat of dismissal is a drastic measure which should not be invoked casually, (2) it was necessary for the investigator to properly comply with the statute by mailing a copy of the certified letter to the complainant. Id.
For the reasons set forth above, the commission concludes that dismissal of the complaint was inappropriate and that the investigation should be resumed.
The decision and order dismissing the complaint in this matter is reversed and the matter is remanded to the Equal Rights Division for an investigation and further proceedings as warranted.
Dated and mailed September 26, 2014
lancetrrrr . doc : 164 : 5 746
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
cc:
Attorney Rebecca Salawdeh
Attorney Randy Enochs
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