MELVIN REED, Complainant

INNOVATIVE HEALTH AND FITNESS, 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 July 15, 2005
reedme.rsd:164:9:  746

BY THE COMMISSION:

/s/ James T. Flynn, Chairperson

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review the complainant argues that he attempted to hand deliver his documents on November 17 and did not know the Equal Rights Division offices closed at 4:30 pm., rather than 5:00 p.m. The complainant also submits a letter from the Counseling Center of Milwaukee, Inc. stating that he obtained treatment there and attended ten counseling sessions from October 14, 2004 through December 9, 2004, as well as a letter from the Milwaukee County DHHS Behavioral Health Division stating that he was at the crisis walk-in clinic on October 15, 2004, October 22, 2004, and November 5, 2004. The complainant contends that these documents constitute irrefutable proof that he was under a doctor's care during a bout with depression. He states that he has now met the conditions for proving that his delay in submitting a required answer was due "in large part" to his medical condition.

The complainant's arguments fail. While the complainant's documents indicate that he sought counseling during the time period at issue, this does not mean that he was too incapacitated to contact the Equal Rights Officer, and the complainant has provided nothing to indicate this was the case. To the contrary, the complainant's explanation that he would have responded in a timely manner, had he realized the Division's offices closed at 4:30 p.m., indicates that he was not medically incapable of responding to the certified correspondence from the department and that his failure to do so was the result of his own negligence.

Further, and more importantly, even if the complainant had established that he was too depressed to respond to the department's certified correspondence, this would have no bearing on the decision, where the statute mandates that a complaint be dismissed if correspondence from the department concerning the person's complaint is sent by certified mail to the person's last-known address and the person fails to respond within 20 days to that correspondence. See Wis. Stat. § 111.39(3). The statute does not provide for any exceptions, even where the complainant had a good reason for failing to comply. Mohr v. Kohler Co. and UAW Local 833 (LIRC, Dec. 27, 2001); Seiser v. Meadowmere Assisted Living (LIRC, June 24, 2002).

With regard to the argument that the complainant unsuccessfully attempted to hand deliver a response in a timely manner, this circumstance, assuming it occurred, would also not warrant a reversal. The complainant was on notice that he had thirty days to submit his response, and was obligated to act within that time frame. If the complainant gambled that he could wait until after 4:30 p.m. on the thirtieth day, without taking the reasonable step of confirming that the office would be open and that he would be able to submit a response at that time, he must accept the consequences of assuming such a risk. Further, even if the commission were persuaded that the complainant was not at fault for his failure to file a response within the time period specified, the fact remains that the statute requiring dismissal makes no exception under those circumstances. The dismissal of the complaint is affirmed.

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