ORA M RODGERS, Complainant

LUTHERAN HOME 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 December 30, 2005
rodgeor . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

In an initial determination issued on May 4, 2005, the Equal Rights Division (ERD) found no probable cause to believe that the complainant had been discriminated against as alleged. The complainant filed a timely appeal of this determination on June 1, 2005.

On July 20, 2005, the respondent provided notice to the complainant and ERD that it intended to engage in discovery with the complainant.

On July 22, 2005, ERD issued notice that hearing on the probable cause issue would be held on October 28, 2005. At respondent's request, this hearing was postponed to December 14, 2005.

On August 5, 2005, respondent filed its first Requests for Admission. The complainant did not respond to this discovery request within the statutory 30-day period, or at any time thereafter.

On October 3, 2005, the respondent filed a motion to dismiss the complainant's charge. The basis for its motion was the complainant's failure to respond to respondent's discovery request. The respondent had two theories, i.e., that ERD had discretion pursuant to Wis. Stat. Ch. 804 to dismiss the charge based on the complainant's failure to engage in the discovery process, or, in the alternative, that the statements in its discovery request should be deemed to be admitted as the result of complainant's failure to respond and, given these admissions, the complainant had failed to state a claim for relief.

Administrative Law Judge (ALJ) Schacht sent a certified letter to the complainant on October 3, 2005. In this letter, he stated as follows:

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. (emphasis in original)

The complainant did not respond to either the discovery request or the 20-day letter by November 1, 2005, and, as a result, ALJ Schacht issued a dismissal order on November 4, 2005.

The complainant, on November 22, 2005, hand-delivered what is being processed as an appeal of the ALJ's dismissal order.

Wisconsin Statutes § 111.39(3) provides that:
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.

The commission has ruled that the department correspondence referenced in this statutory provision must require a response, and must be "purposeful," e.g., must seek to elicit information which ERD requires in order to further process the underlying charge, or must be prompted by some action or inaction by the complainant tending to place in doubt the complainant's intent to proceed. See, Palmer v. Wisconsin Public Service Corp., ERD Case No. CR200201890 (LIRC July 30, 2003); Frederick v. Initial Security, ERD Case No. CR200202997 (LIRC Aug. 28, 2003); Johnson v. Badger Meter, ERD Case No. CR200404168 (LIRC July 29, 2005).

The department correspondence at issue here advised the complainant that a response was required, and was "purposeful," i.e., ERD had reason to question the complainant's intent to proceed when she failed to respond to the respondent's discovery request.

As a result, the administrative law judge's letter satisfied the requirements of Wis. Stat. § 111.39(3), and complainant's failure to respond to this letter justified the dismissal of her charge.

cc: Attorney Kristi Nelson Foy

Appealed to Circuit Court. Appeal dismissed, May 31, 2006.

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