Wis.LIRC ER Decision: Gill - November 30, 2000 - Failure to respond to correspondence from the department - response must be received within 20 days after correspondence from Department is sent

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

LENA GILL, Complainant

DAIRYLAND BUSES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200000941, EEOC Case No. 26GA00923

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.

DECISION

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

Dated and mailed November 30, 2000
gilllen.rsd:125:9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On September 11, 2000, the department sent a letter to the complainant, Lena Gill, concerning her complaint of discrimination filed against the respondent, Dairyland Buses, Inc. This correspondence was sent by certified mail to Ms. Gill's last-known address, and was received at her address on September 20, 2000, by Wanda Gill. The correspondence advised Lena Gill that she must contact the ALJ regarding her intention to appear and proceed with her case within 20 calendar days of the date of the letter, and that if she did not contact the ALJ within 20 calendar days of the date of the letter her case would be dismissed with prejudice for failure to respond pursuant to Wis. Stat. � 111.39(3). This statute section reads as follows:

"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."

Lena Gill responded by way of letter to the September 11, 2000 correspondence, but it was not filed with department until October 4, 2000, which was three days after the 20 calendar day deadline (the 20th day fell on Sunday, October 1, so the last day to respond was the next business day per DWD 218.02(4)).

The ALJ issued a decision on October 6, 2000, ordering the dismissal of Ms. Gill's complaint based upon her failure to respond to the September 11, 2000 certified letter within the 20-day time period. On appeal Lena Gill apparently asserts that it was sometime after September 20 before she received the letter, and that a period of 20 days had not elapsed from the time she received the letter and the date, October 4, when her response was filed with the department. Apparently referring to the "REQUEST TO WITHDRAW COMPLAINT" form that was enclosed with the department's September 11 correspondence, Ms. Gill also indicates that because the correspondence stated that if she did not intend to appear for the hearing she could complete the withdrawal form, which she did not complete, she thought everything was set for the hearing scheduled for November 16, 2000.

The commission must affirm the ALJ's dismissal of the complaint in this matter. Wisconsin statute section 111.39(3) does not state that a person has 20 days from the date he or she "receives" the department correspondence to respond. This statute states that "The department shall dismiss a complaint if the person filing the complaint fails to respond within 20 days to any correspondence . . . sent by certified mail to the last-known address of the person." (Emphasis added). The department's correspondence was sent on September 11, which therefore meant that a response had to be received by October 2 in this case because the 20th day fell on a Sunday. Ms. Gill's assertion with respect to the withdrawal form also fails. The department's correspondence advised her that it was important for scheduling purposes to know whether or not she intended to appear and present evidence at the hearing, and that she had to contact the ALJ "regarding (her) intention to appear and proceed with this case" within 20 days of the department's correspondence. Following this, the department's correspondence then advised Ms. Gill that if she "(did) not intend to appear and proceed with this case, you may complete the withdrawal form enclosed with this letter and return that form to my attention." Based upon Ms. Gill's apparent assertion that she thought that by not completing the withdrawal form it meant everything would be set for the scheduled hearing, the department would never know whether or not she intended to appear for the hearing. However, the department correspondence clearly indicated that it was important to know whether or not she intended to appear at the hearing for scheduling purposes. Further, if Ms. Gill had any confusion about what she was required to do, she could have contacted the ALJ, as instructed in the department correspondence.

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