Wis.LIRC ER Decision: Vandehey, Cheryl - September 16, 2016 - 746. Procedure - dismissals for failure to respond to correspondence from the department – where the requirements of Wis. Stat. § 111.39(3) were satisfied, dismissal of the matter was required by law - there is no exception where a party can show that failure to respond in a timely manner was for a reason beyond its control.

The decision of the administrative law judge (copy attached) is modified and, as modified, is affirmed. Accordingly, the complaint of discrimination is dismissed.

This case is before the commission to consider the question of whether the complainant's complaint was properly dismissed based upon her failure to respond within 20 days to correspondence from the department concerning the complaint sent by certified mail to her last known address. An administrative law judge for the Equal Rights Division issued a decision in this matter, and a timely petition for commission review was filed. The commission has considered the petition and the positions of the parties, and has reviewed the evidence before it. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own , except that it makes the following:

The first full paragraph on page 3 of the administrative law judge's decision is deleted.

In her petition for commission review the complainant argues that the reason she did not respond to the letter from the Equal Rights Division by the deadline is that the documents attached were the response to her discrimination complaint and she did not realize this was for her retaliation case. This argument fails. In the first place, department records indicate that the complainant had already requested an independent investigation of her underlying discrimination complaint (ERD Case No. CR201402109), so her assertion that she believed the department was asking her if she wanted it to conduct an independent investigation of that complaint is not credible. Further, and more importantly, the statute mandates dismissal of a complaint where there is a failure to respond within 20 days to correspondence from the department concerning the complaint that is sent by certified mail to the complainant at her last known address. See, Wis. Stat. § 111.39(3). The law does not provide for any exceptions, even where the complainant had a good reason for failing to respond.[2] Mohr v. Kohler, ERD Case No. CR200002906 (LIRC Dec. 27, 2001), Reed v. Innovative Health and Fitness, ERD Case No. CR2000403483 (LIRC July 15, 2005). The dismissal of the complaint is, therefore, affirmed.

[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission's website at http://lirc.wisconsin.gov.

[2]The administrative law judge found that the complainant did not establish it was beyond her control to respond to the correspondence from the department within 20 days. However, the statute mandates dismissal where no timely response is received to the department's certified correspondence, and does not provide an exception where a party can show that the failure to respond in a timely manner was for a reason beyond the party's control.