DAVID C PALMER, Complainant

WISCONSIN PUBLIC SERVICE CORPORATION, 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 decides as follows:

Complainant appeals from a decision by an administrative law judge (ALJ) dismissing his complaint pursuant to Wis. Stat. § 111.39(3), for failure to respond to a letter stating as follows, as relevant here:

If you have decided not to proceed further with your complaint, please fill out and return the enclosed Request to Withdraw Complaint form. If I do not hear from you within twenty days of the date of this letter, your complaint will be dismissed, pursuant to sec. 111.39(3), Stats.

Any application or interpretation of a provision of the Wisconsin Fair Employment Act (WFEA) requires consideration of the Act's purpose. Wisconsin Statutes § 111.31, states in relevant part as follows in this regard:

The legislature finds that the practice of unfair discrimination in employment . substantially and adversely affects the general welfare of the state. . In the interpretation and application of this subchapter, . it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals.This subchapter shall be liberally construed for the accomplishment of this purpose.

In Wis. Stat. § 111.39(3), the WFEA states 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.

In order to determine whether or not it is appropriate to dismiss a complaint under Wis. Stat. § 111.39(3), it is first necessary to determine whether the complainant was sent a letter which was "correspondence from the department concerning the complaint" within the meaning of this provision. The commission considers it appropriate to take up that question in this case.

Based on consideration of the purposes underlying the WFEA and § 111.39(3), the commission concludes that there are at least two significant elements which are required in order for a letter to constitute "correspondence from the department concerning the complaint" within the meaning of this section.

Given that a complainant is to be penalized for failing to respond to it, the correspondence must require a response. After all, if a complainant was sent a letter which did not state that a response was necessary, it would not be surprising were the complainant not to respond. In such a case, it would be unreasonable and absurd to then dismiss the complaint because the complainant had not responded. It is a cardinal principle of statutory construction, that the words of a statute should be interpreted in such a way as to avoid unreasonable and absurd results. Schwartz v. ILHR Dept., 72 Wis. 2d 217, 222, 240 N.W.2d 173 (1976). Therefore, the phrase "correspondence from the department concerning the complaint" must be understood to mean correspondence which poses some sort of question and informs the complainant that a response is required.

In addition, "correspondence from the department concerning the complaint" must be purposeful. When weighing the construction of a statute, the purpose of the statute must be kept in mind. Anderson. v. LIRC, 111 Wis. 2d 245, 254 (1983). The case management tool provided by Wis. Stat. § 111.39(3) is a powerful one. Its violation deprives a complainant of redress under the WFEA for his complaint of discrimination, a harsh result. Surely, the legislature, in enacting this provision within the ambit of the WFEA, with its broad remedial intent, anticipated that the response sought by the department from a complainant under § 111.39(3) would necessarily assist the department in obtaining information which it actually needs to process and decide cases, and would advance the department's legitimate goal of efficiently managing its caseload as well as the interests of administrative justice.

If a complainant was simply sent a letter which stated that a "response" was required but which did not actually express any sort of question to which to respond, it would be unreasonable and absurd to then dismiss the complaint because the complainant did not provide that uninformative response. Similarly, if a complainant was simply sent a letter requesting information that the department already had, it would be unreasonable and absurd to then dismiss the complaint because the complainant did not provide that unnecessary response. Therefore, "correspondence from the department concerning the complaint" must also be understood to mean correspondence that poses a question that the department needs to have answered.

The commission has previously construed the phrase "correspondence from the department concerning the complaint" as referring to purposeful communication. In upholding a dismissal of a complaint under § 111.39(3) in McCarter v. Johnson Controls (LIRC, May 1, 1993), the commission made this observation:

In this case, the investigation was extraordinarily delayed because of complainant's failure, despite numerous requests, to file any written statement of position. The ALJ therefore had a reason to want to seek confirmation from the complainant of her intention to go forward in the matter. The correspondence to the complainant which she failed to timely respond to, was thus a purposeful piece of "correspondence from the department concerning the complaint" within the meaning of that statute.

In contrast to the situation in McCarter, in this case the circumstances were not such as to have raised any particular reason for concern that the complainant might not appear at hearing because of a decision not to go forward with the matter. The complainant had participated in the investigation, submitting several written statements, providing a requested medical release, and communicating with the investigator by telephone on a number of occasions. After the Initial Determination was issued on September 9, 2002, the complainant filed an appeal within a week, and there was nothing in this appeal to indicate that he had decided to stop pursuing the case. There is no indication in the file that either the Certification To Hearing notice sent to the complainant thereafter, on September 18, 2002, or the Notice of Hearing sent to the complainant on December 26, 2002, had been returned to the department by the postal service. Thus, as of the point that the administrative law judge sent his letter to the complainant on January 14, 2003, there was simply no reason for him to have believed that the complainant had decided to abandon his pursuit of the case, or that the complainant needed to be reminded of the information that had been provided to him in the Notice of Hearing. Apart from these things, no other reason is evident for the administrative law judge's letter. It is therefore very difficult to see the administrative law judge's letter as being "purposeful" in any respect -- apart from having the purpose of "fishing" to see if the complainant would fail to respond, thus allowing his complaint to be dismissed.

In addition, the commission would note that the letter sent to the complainant in this case did not meet the requirement that it clearly request a specific response. Instead, the letter was merely declaratory. It did no more than to restate information which had already been provided to the complainant in the Notice of Hearing and accompanying informational materials which had been sent to the complainant less than a month before. The only thing in the letter which could be characterized as a request for a response was the statement,

If I do not hear from you within twenty days of the date of this letter, your complaint will be dismissed, pursuant to sec. 111.39(3), Stats.

While this can be taken as a request by the administrative law judge to "hear from" the complainant, there is nothing in the letter indicating what the administrative law judge needed to hear, or why. There was, in fact, no actual request for information in the letter at all. This is evident from the fact that, given the nature of the administrative law judge's letter, a response limited to "I am responding to your letter" would have satisfied its terms.

For these reasons, the commission concludes that the January 14, 2003 letter from the administrative law judge in this case was not "correspondence from the department concerning the complaint" within the meaning of that phrase as used in Wis. Stat. § 111.39(3). Therefore, the dismissal of the complaint was not justified under that provision.

It should also be noted that the complainant's contention that his case should not be dismissed because he never actually received the 20-day letter from the ALJ raises another statutory interpretation issue as well as a due process issue.

Complainant asserts that he never actually received the correspondence from the department, because, due to illness, he was unable to go to the Post Office to claim the certified letter before it was returned to the department by the postal service. This assertion raises an issue of statutory interpretation, i.e., whether it makes any difference under § 111.39(3) if the complainant never actually receives the correspondence sent by the department. The commission has issued a number of decisions which uphold dismissals under this section where it was not disputed that the complainant never actually received the correspondence from the department. See, e.g., Pohl v. Sa Bai Thong (LIRC, May 12, 1993). However, in at least one decision the commission appeared to acknowledge that if a certified letter was not in fact received it could be relevant to the question of whether dismissal was appropriate. See, Peterson v. K-Mart (LIRC, May 24, 1991). In addition, at least one court has held that because non-receipt of the certified letter from the department frustrates the purpose of § 111.39(3), a dismissal in such a case should be set aside. See, Wilson v. LIRC and New Horizon Center (No. 01 CV 6492, Milw. Co. Cir. Ct., Jan. 11, 2002).

A question of constitutional proportions is also implicated by this issue. It could be argued that, if the statute were interpreted in such a way that it allowed the dismissal of a complaint even where the complainant had, through no fault of his own, never actually received the correspondence from the department, it would involve a denial of due process of law. See, Mullen v. Braatz, 179 Wis. 2d 749, 754-55, 508 N.W.2d 446 (Ct. App. 1993).

Because of the conclusion reached above that the ALJ's 20-day letter does not meet the definition of "correspondence from the department concerning the complaint," the commission does not find it necessary to address the other questions referred to above concerning the relevance of non-receipt of the certified correspondence from the department.

The decision and order of the administrative law judge dismissing this complaint is reversed, and this matter is remanded to the department for hearing on the issue of probable cause.

Dated and mailed July 30, 2003
palmeda . rrr : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Ann I. Mennell

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