JOSE HERNANDEZ, Complainant

SPANISH CENTERS OF RACINE, KENOSHA & WALWORTH INC, 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 January 23, 2002
hernajo . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The ALJ sent a certified letter dated November 20, 2001, to the complainant at his last known address which inquired about his intent to appear and present evidence at the scheduled hearing on his discrimination claim. The certified letter informed the complainant that he had to contact the ALJ within 20 days after the date of the letter if he wanted to continue to pursue his claim, and that if he did not contact the ALJ within 20 days of the date of the letter his state discrimination claim would be dismissed forever for failure to respond, pursuant to Wis. Stat. § 111.39(3).

The case file shows that it was not until December 12, 2001, that the department received a letter from the complainant responding to the ALJ's certified letter.

On December 13, 2001, the ALJ issued a decision stating that the complainant failed to respond in writing or in any other manner within the time period specified in the certified letter sent to the complainant. Accordingly, the ALJ ordered that the complainant's complaint in this matter be dismissed with prejudice.

In his petition for review of the ALJ's decision the complainant offers a number of reasons for his failure to timely respond to the ALJ's certified letter. The complainant states that he received the certified letter on November 26, 2001, but left that evening to visit a sick relative in Texas and did not return until December 6, 2001. The complainant states that he understood the 20-day deadline to mean 20 days from his receipt of the letter. That is, he had until December 16, 2001, to respond since he signed and received the certified letter on November 16, 2001. The complainant states that he could not afford the cost of an overnight package so he sent his response by regular mail. The complainant asserts that he mailed his letter response on the evening of December 7, 2001, but it must have been routed to Milwaukee, causing a delay, and he notes that a newspaper had recently reported that the mail delivery was taking longer because of the holiday season. Finally, the complainant states that he does not have a telephone or easy access to a telephone that he could use to make a long-distance call to the ERD.

The reasons offered by the complainant as explanation for his untimely response to the ALJ's correspondence are unpersuasive. The ALJ's letter emphasized the time period in which the complainant had to respond to her letter, as it twice underscores the fact that he had 20 days from the date of the letter to respond. Thus, the complainant was clearly put on notice as to what was required of him. Further, while the complainant has included cost of expedited mail delivery, delay in regular mail service and lack of a telephone or "easy access" to a telephone as reasons for his failure to timely respond, considering the importance of a timely response from him and the potential adverse consequences of a failure to timely respond to the ALJ's correspondence it is difficult to believe that the complainant could not have obtained the necessary assistance from a friend or neighbor so that a timely response could have been made.

In any case, Wis. Stat. § 111.39(3), requires that the complainant's complaint be dismissed. That statute provides in its entirety 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." (Emphasis added.)

The statute does not allow for any exceptions. The statute requires that a complaint be dismissed where 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.

cc: Jeffrey J. Davison

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