JODI L. FREDERICK, Complainant

INITIAL SECURITY, Respondent

This case arises out of a complaint alleging that the respondent discharged the complainant because of her disability. An Initial Determination issued on October 11, 2002 found probable cause, and the matter was certified to hearing. A Notice of Hearing was issued on December 10, 2002 setting the matter for hearing on March 28, 2003 before Administrative Law Judge Larry R. Jakubowski.

On February 5, 2003, Jakubowski sent the complainant, by certified mail, a letter which stated as follows:

I am writing regarding the status of your case, which is currently scheduled for hearing on March 28, 2003. It is important for scheduling purposes to know whether you intend to appear and present evidence at the hearing in this matter. Pursuant to Wisconsin Statute Section 111.39(3), this letter is being sent to notify you that you must contact me regarding your intention to appear and proceed with this case. You must contact me within 20 days of the date of this letter.

If you do 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. Completion of the withdrawal form will result in the dismissal of your case with prejudice.

If you do not contact me within 20 calendar days of the date of this letter, your case will be dismissed with prejudice for failure to respond, pursuant to Section 111.39(3), Stats. If you have any questions, please contact me at the Equal Rights Division.

This letter was accompanied by a "Request To Withdraw Complaint" form that had been completed by the insertion of the complainant's name and address, the case numbers, and the name of the administrative law judge.

On February 7, 2003, the ERD received the certified mail card confirming that the letter was received at the address to which it was mailed on February 6. It had been signed for by "Janet E. Frederick".

No response was received by the ERD from the complainant, or from anyone else on the complainant's behalf, by February 25, 2003, the 20th day following the date of the administrative law judge's letter.

On March 14, 2003, the administrative law judge issued an order dismissing the complaint pursuant to Wis. Stat. § 111.39(3) on the grounds that the complainant had not responded within 20 days following the issuance of his February 5 letter.

On March 18, 2003, the complainant FAXed a letter to the ERD in response to the dismissal order, in which she asserted that the reason the administrative law judge did not hear from her was that everything she had was sent to her attorney's office, and that he had said that he was going to take care of it himself. The complainant also mailed an appeal letter to the ERD on March 18 (received on March 19), in which she repeated her assertion that her attorney had all of her paperwork and was taking care of the matter.

The issue presented by the petition for review is whether the dismissal of the complaint was warranted under Wis. Stat. § 111.39(3).

Discussion -

The letter which was sent to the complainant in this case was an example of a wider practice engaged in by some administrative law judges of the ERD, which involves sending letters to unrepresented complainants using certified mail and invoking the provisions of Wis. Stat. § 111.39(3). The letters are identical or virtually identical. (1)   The only request for a response contained in the letters, is a statement that the complainant must contact the administrative law judge "regarding your intention to appear at the scheduled hearing". The only explanation provided as to why this response is being requested, is a statement that "it is important for scheduling purposes" to know whether or not the complainant intends to appear and present evidence in the case. These letters are accompanied by "Request To Withdraw Complaint" forms that have been completed by the insertion of the parties' names and addresses, the case numbers, and the name of the administrative law judge to whom the form can be returned. The letters inform the complainants to whom they are directed that if they do not intend to appear and proceed in the case, they may sign and submit the withdrawal form, which will result in the case being dismissed. (2)

The commission has observed that in many if not most cases in which these letters are used, the inquiry about whether the complainant is planning to appear and proceed with the case is made with nothing in the file providing any reason to provoke it. This is such a case. There is nothing in the file to indicate that either the Initial Determination mailed to the complainant on October 11, 2002, or the Notice of Hearing mailed to the complainant on December 10, 2002, had been returned to the ERD by the postal service. There is nothing else in the file providing any other reason for concern that the complainant might have moved, or might for some other reason not have received these or any other mailings from the ERD. There had been no failures to respond to or comply with discovery requests or other communications sent to the complainant by the respondent. There is nothing in the file to indicate that the complainant had made any statements or other communications, either to the ERD or to the respondent or any other party, suggesting that she was thinking of abandoning her case. There was, in short, nothing in the file which could be pointed to as a reason why the administrative law judge would have a particular reason to ask this complainant to contact him regarding her intention to appear at the scheduled hearing. (3)

In Palmer v. Wisconsin Public Service Corp. (LIRC, July 30, 2003), the commission confronted a similar situation. It noted in that decision that where there was simply no reason for an administrative law judge 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, and where there was no other reason evident in the file for the administrative law judge's 20-day letter, it was very difficult to see that letter as having been "purposeful" in any respect. The commission contrasted this with the situation which had been presented in McCarter v. Johnson Controls  (LIRC, May 1, 1993), where specific events which had occurred in that case gave the administrative law judge a reason to want to seek confirmation from the complainant of her intention to go forward in the matter.

The commission concluded in Palmer, that given the evident purpose of Wis. Stat. § 111.39(3), it was necessary to interpret the phrase "correspondence from the department concerning the complaint" which appears in that provision, as referring to purposeful correspondence. The commission held that "correspondence from the department concerning the complaint" must be understood to mean correspondence that poses a question that the department needs to have answered. A 20-day letter sent out simply as part of a routine practice of sending such letters, where there is no particular circumstance in the case that justifies concern about whether the complainant will appear and nothing which can be pointed to as a reason to demand such a response from the particular complainant, is not purposeful in the sense required by this standard. Such a letter does not satisfy the standard set out in Palmer, because where no particular reason can be identified for asking a question, it cannot be said that there is any particular need to have that question answered.

For the foregoing reasons, the commission concludes that the February 5, 2003 letter sent by the administrative law judge to the complainant 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. On that basis, the commission now makes the following:

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

Dated and mailed August 28, 2003
fredejo . rrr : 110 :

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission understands, that the practice of routinely issuing "20-day letters" to complainants prior to a scheduled hearing may have the effect of identifying some who have decided to abandon pursuit of their cases, thus allowing the administrative law judges to adjust their hearing calendars and avoid possible "no-show" hearings. However, it is predictable, to the point of virtual certainty, that such routine use of 20-day letters will also result in a significant number of failures to respond and consequent dismissal, where the complainant had actually intended to pursue their case. This is illustrated by the fact, alluded to above, that in the last 10 years alone the commission has received appeals in almost 60 cases involving dismissals of complaints for failure to respond under Wis. Stat. § 111.39(3). The fact that the complainants petitioned for commission review after receiving those dismissal orders is persuasive evidence that they had wanted to pursue their cases.

It is not surprising, that the use of the 20-day letter procedure can so frequently result in failures to respond even in cases in which the complainant has not decided to abandon their case. The mechanics of certified mail conspire to make a failure to respond more likely than it would be if regular mail was used. Mail deliveries are generally made during the day, when it is more likely that no one will be home at the recipient's address. When no one is home to sign for a certified letter, the postal service simply leaves a small slip of paper indicating that an attempt was made to deliver a certified item, which may be picked up at the post office. Complainants may have limited access to transportation, or constraints on their availability during the hours the post office is open, which make it difficult for them to get to the post office where the item is held after an attempted delivery. In addition, because the slips left after an unsuccessful attempt to deliver a certified item do not provide any information about who the item was from, an intended recipient of one of these letters who returns home at the end of the day and finds such a slip in their mailbox has no way of knowing that the item was correspondence from the ERD, much less that it set a deadline of 20 days running on their case. These things increase the likelihood that even complainants who are genuinely interested in pursuing their case may nevertheless fail to meet the 20-day deadline.

It is thus foreseeable that routine use of this provision merely in order to troll for uninterested complainants, will result in the dismissal of a significant number of interested complainants' cases. In those situations, the complaint will have been dismissed solely because of the complainant's failure to respond to an inquiry that was, in their case, unnecessary and unjustified in the first place. The fact that this is a foreseeable outcome of the practice creates the appearance that the practice is an arbitrary exercise of power.

The commission also considers that to the extent that this practice is one which focuses on complainants who do not have attorneys, it is improper. It is beyond question, that complainants in proceedings before the ERD have the right to represent themselves if they so choose. A demand that one respond within 20 days to a piece of certified correspondence, on pain of dismissal of one's complaint, is a significant procedural requirement. If complainants who choose to represent themselves are subjected to this procedural requirement, while complainants who retain counsel are not, there is plainly a burden placed on the unquestioned right of complainants to proceed pro se.

There is another problem with the practice exemplified by this case. As important as it is for administrative law judges to be impartial in their handling of the cases assigned to them, it is equally important for them to avoid creating even the appearance of partiality. Phillips v. Milwaukee County Medical Complex (LIRC, 09/27/89). An administrative law judge should therefore attempt to avoid creating the appearance that they have prejudged the matter before them. See, e.g., Lee v. Stark and Fitzpatrick Law Office (LIRC, Aug. 12, 2003). Unfortunately, this is a concern here. As noted above, the practice which was followed in this case is one in which administrative law judges, for no particular reason, pointedly raise the idea of the complainant dropping their case, actually supplying the complainant with a completed and ready-to-sign withdrawal form. Coming "out of the blue" in this fashion, when the party has said and done nothing to indicate any interest in dropping the case, such a communication can be perceived as a suggestion by the administrative law judge that the complainant should drop their case. This, the commission believes, creates a potential for the appearance of a lack of impartiality on the administrative law judge's part.

These factors militate in favor of the construction which the commission has given to the phrase, "correspondence from the department concerning the complaint". Where there is already a particular reason in a case to ask a complainant if they are still planning to appear and proceed with their case, use of the "20-day letter" procedure to make that inquiry carries with it less risk that complainants who are genuinely interested in continuing to pursue their cases will have their claim extinguished because of inadvertent failure to respond in time. Also, where there is a particular reason for the inquiry, the practice does not have the effect of being merely a de facto procedural requirement imposed on unrepresented complainants. Furthermore, where there is a particular reason in a case to ask a complainant if they are still planning to appear and proceed with their case, the fact that an administrative law judge asks that question is understandable and is less likely to create the impression that the administrative law judge is implicitly suggesting (rather than merely inquiring about) that outcome.

For the foregoing reasons, the commission adheres to the view it expressed in Palmer, and on that basis concludes that the order of dismissal in this case was not justified under Wis. Stat. § 111.39(3).

NOTE: The commission wishes to repeat its observation in Palmer, that a question of constitutional proportions appears to be implicated by this issue.

In Mullen et al. v. Braatz, 179 Wis. 2d 749, 508 N.W.2d 446 (Ct. App., 1993), the Court of Appeals identified a due process issue in the interpretation and application of Wis. Stat. § § 806.06(5) and 808.04(1), which affects the time for appeal to the Court of Appeals depending on when and whether notice of entry of judgment is "given". Wis. Stat. § 808.04(1) provides in relevant part that the time for appeal to the Court of Appeals is shortened if written notice of entry is "given" within 21 days of the date thereof; Wis. Stat. § 806.06(5) provides that notice of entry must be "given" within 21 days after the entry to constitute notice under § 808.04. In Mullen, it was contended that because the notice of entry was mailed, the presumption of delivery upon mailing could be relied upon to establish that the notice had been "given", even absent actual receipt. The Court of Appeals held that the presumption could not be given conclusive effect without violating the due process clause. Implicitly, the court was holding that if the presumption were defeated by proof that the notice was not received, the notice could not be considered to have been "given".

As the commission acknowledged in Palmer, it has in the past upheld dismissals under § 111.39(3) where it was undisputed that the complainant never actually received the correspondence from the department. See, e.g., Pohl v. Sa Bai Thong (LIRC, May 12, 1993). It has done so because the language of the statute appears to call for this result. However, a recent circuit court decision has led the commission to consider the question of the interpretation of Wis. Stat. § 111.39(3) more closely than in the past. In Corey Wilson v. LIRC and New Horizon Center (Milw. Co. Cir. Ct., No. 01-CV-6492, January 11, 2002), the Milwaukee County Circuit Court reversed a decision of the commission which had upheld an administrative law judge's order of dismissal premised on § 111.39(3). In that case, the complainant credibly argued that he had not actually received the certified correspondence in question. The court reasoned that the purpose of the legislature in choosing to specify the use of certified mail in § 111.39(3), was to ensure delivery and to easily determine date of delivery. Thus, the court reasoned, the purpose of the statute would be "clearly frustrated" if it was interpreted so as to allow its operation when delivery did not occur. By its decision to set aside the dismissal decision in that case, the court implicitly held that the statute should be interpreted so as to preclude its operation where actual delivery did not occur.

In connection with reconsidering this matter in view of the Corey Wilson decision, the commission has taken a fresh look at the potential due process issues implicated by an interpretation of § 111.39(3) which treats the question of whether the correspondence was ever actually received as irrelevant. As an administrative agency only, the commission has no power to ignore the provisions of statutes under which it operates on the theory that they are unconstitutional. See, McManus v. Revenue Dept., 155 Wis. 2d 450, 454, 455 N.W.2d 906 (Ct. App., 1990), Wisconsin Socialist Workers 1976 Campaign Committee v. McCann, 433 F. Supp. 540, 545 (E.D. Wis. 1977) (administrative agencies have no authority to rule on the constitutionality of statutes they enforce). However, the commission is empowered to interpret the statutes under which it operates, and in so doing it may observe the well-established principle of statutory construction, that a statute should be construed in such a manner as to avoid potential constitutional objections to its validity, if it will bear such construction, see, State ex rel. La Follette v. Reuter, 36 Wis. 2d 96, 120, 153 N.W.2d 49 (1967), David Jeffrey Co. v. Milwaukee, 267 Wis. 559, 576, 66 N.W.2d 362 (1954), Swanke v. Oneida County, 265 Wis. 92, 99, 60 N.W.2d 756, 62 N.W.2d 7 (1953). An interpretation of Wis. Stat. § 111.39(3) such as that adopted by the Milwaukee County Circuit Court in Corey Wilson, is consistent with this principle. However, given the conclusion reached in this case, that the administrative law judge's "20-day letter" did not constitute "correspondence from the department concerning the complaint" within the meaning of Wis. Stat. § 111.39(3), the commission leaves to another the day the question of whether it will adopt such an interpretation.

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(1)( Back ) The uniformity of the letters used in this practice is illustrated in two other decisions the commission has issued this date, Frederick v. Initial Security and Martinez v. Water Street Brewery. For other uses of the same (or substantially similar) letters, see, e.g., Wingo v. Pepsi Cola (LIRC, Jan. 3, 2002), Graham v. Stark Asphalt (LIRC, Oct. 19, 2001), Wilson v. New Horizon Center (LIRC, Jun. 27, 2001), Gill v. Dairyland Buses (LIRC, Nov. 30, 2000), and Kincaid v. Excalibur Laundries (LIRC, Mar. 17, 2000).

(2)( Back ) The commission is aware of this practice through its experience over the years in review of decisions of ERD administrative law judges. In the last 10 years alone the commission has conducted reviews in almost 60 cases involving dismissals of complaints for "failure to respond" under Wis. Stat. 111.39(3). In addition, the commission has noted the presence of these kinds of certified "20-day letters" in files in many other cases in which a timely response was made to the letter and there was therefore no order of dismissal on that basis. The commission has noted that the particular type of use of 20-day letters described here has been engaged in extensively by certain administrative law judges while little or not at all by others.

(3)( Back ) Based on its experience in the review of decisions of administrative law judges in these cases, see note 2, supra, the commission infers that in most cases the only reason why these "form" 20-day letters are being sent is the fact that the complainants are not represented by counsel.

uploaded 2003/09/02