ANDREW T MURPHY, Complainant

UW MADISON BOARD OF REGENTS, 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, except that it makes the following modifications:

In the last paragraph on page 2 of the administrative law judge's DECISION, the date "July 22, 2014" is deleted wherever it appears and the date "July 22, 2015" is substituted therefor.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed April 11, 2016

murphan_rmd . doc : 164 : 5   746

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The complainant's petition for commission review contains no argument, and the commission has no specific indication as to why the complainant believes the administrative law judge's decision should be reversed. Notwithstanding this, the commission has conducted an independent review of the matter in order to determine whether the administrative law judge's decision is supported. Based upon that review, the commission concludes that it is.

The Wisconsin Fair Employment Act contains the following provision:

"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).

The record and case file indicate that the complainant failed to respond to a certified letter that was sent by the department to his last known address, and which sought information concerning the complaint--specifically, whether the complainant wanted the Equal Rights Division (hereinafter "Division") to conduct a second independent investigation of his complaint, following a dismissal by the United States Equal Employment Opportunity Commission (EEOC).(1) The certified letter, mailed on May 8, 2014, and received and signed for by an agent of the complainant on May 12, 2014, specified that if the Division received no response by May 28, 2014, the case would be dismissed, pursuant to Wis. Stat. § 111.39(3). Despite that warning, no response was received by the May 28 deadline.

Department records indicate that on May 30, 2014, the Division issued a letter notifying the parties that the case was dismissed.(2) The complainant's attorney received the May 30 letter, but nonetheless contacted the Division on June 2 to request that the matter be placed in abeyance pending resolution of a complaint filed in federal court. The Division, notwithstanding its previous notice of dismissal, complied with that request. However, because the requirements of Wis. Stat. § 111.39(3) were satisfied, dismissal of this matter was required by law, and the fact that the Division placed the matter into abeyance after issuing its order of dismissal does not serve to resuscitate the case. The dismissal for failure to respond to the certified correspondence from the Division was appropriate and stands as the final disposition of the case.

Because it agrees with the administrative law judge that dismissal of the complaint was warranted based on the complainant's failure to respond to the 20-day letter, the commission does not find it necessary to address the alternate basis upon which the administrative law judge rested her order. The commission, therefore, does not reach the question of whether dismissal would be appropriate on the basis of issue preclusion.

cc: Attorney Nicholas Fairweather
     Attorney Sierra Beckles Young

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uploaded 2016/04/28

(1)( Back ) The commission has previously held that such correspondence is purposeful, and therefore considered the proper subject of a 20-day letter. See, Johnson v. Badger Meter, ERD Case No. CR200404168 (LIRC July 29, 2005); Wren v. Columbia St. Mary's Hospital, ERD Case No. 200402125 (LIRC Nov. 26, 2004).

(2)( Back ) While there is no copy of the order of dismissal in the case file, both the handwritten investigator's log and the records maintained in the ERD's "Civil Rights Information System" on-line database indicate that an order of dismissal was issued on May 30, 2015. Neither party disputes this fact.