SARAH M JORSCH, Complainant
GRAPHIC COMMUNICATIONS INC, Respondent
The complaint in this matter was filed on March 10, 2004. On April 9, 2004, an Equal Rights Officer (hereinafter "ERO") with the Equal Rights Division sent the complainant's attorney a letter requesting that he supply certain information regarding the complaint within fifteen days. On April 26, 2004, a few days after the fifteen-day deadline had passed, the complainant's attorney sent the ERO a fax requesting an extension until April 30. This extension was granted. On May 5, when the complainant's attorney still had not submitted the requested information, the ERO sent him a letter indicating that this would be his last opportunity to submit the information requested and that, if the ERO did not hear from him within 20 days, the complaint would be dismissed. The letter was sent by certified mail to John E Raftery, Raftery Law Office, 909 N. 8th St. Ste. 120, Sheboygan, WI 53083. (1) No copy was sent to the complainant. On May 7, the certified letter was signed for by a Mary T. Nettesheim. The complainant's attorney did not submit any response to the letter within the 20-day time period, and, on June 7, the ERO issued a notice of dismissal based on the complainant's failure to reply to the certified letter.
The complainant submitted a timely appeal of the dismissal. In the appeal the complainant's attorney argued that he was unaware what certified letter the ERO was referring to, that he had no memory of signing for any certified letter from the department, and that a thorough search of his office had yielded no such letter.
On September 2, 2004, an administrative law judge issued a decision affirming the dismissal of the complaint. The administrative law judge noted that a letter was sent to the complainant's attorney's office by certified mail, and that no response was received within twenty days. The administrative law judge concluded that dismissal was warranted under Wis. Admin. Code § DWD 218.06(3) and Wis. Stat. § 111.39(3), which provide as follows:
DISMISSAL OF COMPLAINT PRIOR TO COMPLETION OF INVESTIGATION. (a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:
1. The complainant has failed to respond to correspondence from the department concerning the complaint within 20 days after the correspondence was sent by certified mail to the last-known address of the person filing the complaint, in accordance with the provisions of s. 111.39(3), Stats.
Wis. Admin. Code § DWD 218.06(3)(a)1.
"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 complainant, who is no longer represented by counsel, has filed a petition for
commission review of that decision.
Discussion
The threat of dismissal is a drastic measure, which should not be invoked casually. Here, the complainant's attorney had responded to a request for information by asking for a brief extension and, although he did not submit the information by the date specified, less than a week had elapsed since the date on which the information was due. While the complainant's attorney was not diligent in providing the information requested, there was no reason to conclude that he did not intend to do so or that the complainant no longer wished to proceed with her case. The commission believes that, absent any genuine reason to question whether the complainant intended to proceed with her case, it was inappropriate to resort to the threat of dismissal as a means of addressing a brief delay in providing information.
More importantly, having decided to issue what is known as a "20-day" letter, it was necessary for the ERO to properly comply with the statute. That was not done. The statute and rule both refer to dismissal if there is no response to a certified letter sent to "the person filing the complaint." The person filing the complaint was the complainant, not her attorney. However, the certified letter was sent only to the complainant's attorney, with no copy to the complainant. While the complainant's attorney may have been authorized to represent the complainant in this matter, and the commission has routinely held that parties are bound by the acts of their agents, the statute and rule nonetheless do not contemplate dismissal under these circumstances.
The commission also notes that the certified letter which was sent to the complainant's attorney contained the correct street address and city, but the incorrect zip code. The letter was addressed to 53083, when all the correspondence in the file indicates that the complainant's attorney's zip code is 53081. Although the letter was not returned as undeliverable, and was ultimately signed for by an individual named Mary T. Nettesheim, there is nothing in the file to indicate who Ms. Nettesheim may be or whether the letter actually arrived at Attorney Raftery's office. Even if the statute permitted dismissal based upon failure to respond to a certified letter sent to the party's agent's last known address, dismissal of the complaint would be inappropriate where the correct zip code was not used and where it was not shown that the letter was actually delivered to the proper party.
The decision and order dismissing the complaint in this matter is reversed and the matter is remanded to the Equal Rights Division for an investigation and further proceedings as appropriate.
Dated and mailed October 15, 2004
jorscsa . rrr : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney John Raftery
Attorney Anthony J. Resimius
Appealed to Circuit Court. Appeal dismissed (as being from non-final order), February 2, 2005.
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