DAVID XU, Complainant
EPIC SYSTEMS CORP, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.
The administrative law judge's Order of Dismissal is set aside, and this matter is remanded to the Equal Rights Division for an investigation or such further proceedings as may be warranted.
Dated and mailed
March 26, 2015
xudavid_rsd . doc : 164 : 746
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Procedural History
The complainant's complaint was originally filed with the United States Equal Employment Opportunities Commission (EEOC). At the bottom of the complaint form, above the space for the complainant's signature, the following message appeared:
"I want this charge filed with both the EEOC and the state or local Agency, if any. I will advise the agencies if I change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures."
A space at the top of the form, designated "state or local Agency, if any," contains the information "Wisconsin Equal Rights Division."
On June 11, 2013, the EEOC sent the complainant written notification that it had made an administrative decision to close its file in his case. The notice provided the complainant with information about his right to sue, but made no mention of further proceedings by the Wisconsin Equal Rights Division (ERD).
On June 24, 2013, after the EEOC had already dismissed the complaint and notified the complainant of that action, the ERD sent the parties a letter notifying them that, pursuant to a work sharing agreement, the charge was cross-filed with the ERD, but would be initially processed by the EEOC. The letter stated that the ERD would take no action pending the EEOC's processing of the complaint. The letter was originally sent to the complainant at the address that appeared on his complaint form, 345 N.W. 116th Ave. #402, Portland, OR 97229, but was returned to the ERD as undeliverable. The letter was then resent to the complainant at an updated address shown on the EEOC's notice of dismissal: 5420 N.W. 132nd Ave., Portland, OR 97229. The second letter was not returned to the ERD.
The ERD made no further attempt to contact the complainant until August 5, 2014, more than a year after the EEOC had closed its case file, at which time it sent the complainant a letter by certified mail asking him whether he wished the ERD to do an independent investigation of his complaint or whether he no longer wished to pursue the matter. The letter, which was sent to the complainant at the updated address, 5420 N.W. 132nd Ave. address, provided him with 20 days in which to respond. (1) The complainant did not reply to the letter within 20 days.
On September 2, 2014, the ERD issued a "Notice of Dismissal" dismissing the complaint on the ground that the complainant failed to respond to a certified letter from the ERD within 20 days.
The complainant filed a timely appeal of the dismissal. In his appeal, the complainant explained that he had moved and did not receive the certified letter. The complainant elaborated that the ERD's certified letter was sent to his parents' house and that his mother signed for it, but did not inform him about its receipt. He explained that when the second letter from the ERD arrived, notifying the complainant about the dismissal of his case, his mother contacted him and informed him that there were two letters for him. The complainant further explained that he had not kept the ERD apprised of his new address because he thought his case had been dismissed by the EEOC, and he did not realize that the ERD would be doing anything more with it. The complainant indicated that he would, in fact, like the ERD to investigate, and provided the ERD with his new address.
On January 28, 2015, an administrative law judge from the ERD issued a decision affirming the dismissal of the complaint. The administrative law judge reasoned that the complainant had moved and failed to inform the ERD of his new address, causing him to fail to respond to the ERD's letter within 20 days, and that under the circumstances, dismissal was required by statute.
The complainant filed a timely petition for commission review of the administrative law judge's decision. In his petition the complainant reiterated the arguments he made to the administrative law judge. The complainant further explained that he had a forwarding order in place with the United States Postal Service, but it failed to deliver the letter to the proper address.
Discussion
Wisconsin Statute § 111.39(3) provides that:
"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 commission has held that the department correspondence referenced in this statutory provision must actually be seeking information needed by the department in order to process and decide the underlying case. Palmer v. Wisconsin Public Service Corp., ERD Case No. CR200201890 (LIRC July 30, 2003); Frederick v. Initial Security, ERD Case No. CR200202997 (LIRC Aug. 28, 2003). The commission has also held that a letter asking the complainant if he or she wants the ERD to investigate following dismissal by the EEOC is considered to be "purposeful," as contemplated by the statute. Johnson v. Badger Meter, ERD Case No. CR200404168 (LIRC July 29, 2005); Wren v. Columbia St. Mary's Hospital, ERD Case No. CR200402125 (LIRC Nov. 26, 2004). Thus, the letter from the ERD to the complainant in this case is properly considered to be correspondence "concerning the complaint," which was sent to the complainant's last-known address and which he failed to respond to within 20 days.
Although the statute indicates that the department "shall" dismiss a complaint where the complainant has failed to respond to certified correspondence from the department within 20 days, suggesting that dismissal is mandatory, the courts and commission have held that due process considerations may dictate otherwise where, through no fault of his or her own, the complainant never received the certified correspondence. See, Laboy v. Mantissa Corp., ERD Case No. CR201000830 (LIRC March 21, 2012); Bailey v. Target Stores, ERD Case No. CR200703486 (LIRC Oct. 22, 2010); McGee v. County of Milwaukee, ERD Case No. CR200503166 (LIRC Aug. 18, 2006); Nzeaka v. South Point Health Care, ERD Case No. CR200500170 (LIRC Aug. 26, 2005); Peterson v. K-Mart, ERD Case No. CR9000431 (LIRC May 24, 1991). The intent of the statute is frustrated when the complainant does not receive the certified letter. Wilson v. LIRC and New Horizon Center, Inc., Case No. 01CV006492 (Wis. Cir. Ct. Milwaukee Co., Jan. 11, 2002).
In this case, the complainant did not receive the department's certified letter because it was sent to an address where he no longer resided. The complainant, who is a layperson and unrepresented by counsel, was informed when he filed his complaint that he needed to keep both the EEOC and ERD apprised of his current mailing address. However, while the complainant was told that his charge was cross-filed with both agencies, there is nothing in the ERD case file to indicate that the complainant was ever specifically advised that after the EEOC completed its investigation he would have an opportunity to request a separate investigation by the ERD. Consequently, it is not clear that, once the EEOC notified the complainant that it had closed its file in his case, the complainant would have had any reason to expect further contact from the ERD. This is particularly relevant given that the complainant received a letter from the ERD, after his complaint was already dismissed by the EEOC, containing the erroneous and misleading information that the EEOC would be processing his complaint. The ERD then made no attempt to contact the complainant further about his complaint for fourteen months, more than a year after it had been dismissed by the EEOC. (2) The requirement to keep the ERD apprised of a complainant's current mailing address does not continue in perpetuity and, under the circumstances in this case, the commission does not believe the complainant could reasonably have understood that he need continue to do so, nor does it believe that the complainant's failure to respond to the certified letter within 20 days is a circumstance that should deprive him of an investigation into his complaint by the ERD.
The commission also notes that the complainant has asserted he made arrangements for the forwarding of his mail, but that the certified letter was inexplicably delivered to his old address. If, in fact, the complainant had a forwarding order on file with the United States Postal Service, he would have had reason to expect that correspondence from the ERD, including certified letters, would be forwarded to him at his new address. The commission has held that filing a postal forwarding order is a step reasonably undertaken to ensure that a party will continue to receive his or her mail from the ERD without interruption. See, Ford v. Chicago Grill Inc., ERD Case No. CR201300688 (LIRC Feb. 27, 2015), and cases cited therein. However, while a potential error by the United States Postal Service in the delivery of the complainant's mail may amount to yet another circumstance weighing against the dismissal of the complainant's complaint, it is not necessary to decide the matter on that basis, since the other circumstances discussed above are sufficient on their own to warrant setting aside the dismissal whether or not the complainant had a forwarding order in place.
Conclusion
The essential facts are not in dispute. The documents in the case file establish that a certified letter requiring the complainant's immediate response was sent to an address where the complainant no longer resided, and that the complainant did not respond to that letter within the 20-day time period required, leading to the dismissal of his complaint. Upon consideration of the length of time that elapsed since the ERD's last communication with the complainant, along with the fact that the ERD had provided the complainant with inaccurate information regarding the processing of his case, the commission is satisfied that dismissal of his complaint on the basis of his failure to respond to the certified letter was inappropriate. The commission has, therefore, remanded the matter for an investigation into the merits of the complainant's complaint and/or for such other proceedings as may be warranted. (3)
cc:
Attorney Ely Leichtling
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