STEPHEN M SEISER, Complainant

MEADOWMERE ASSISTED LIVING, 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 June 24, 2002
seisest . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The ALJ sent a letter dated April 12, 2002, by certified mail to Complainant Stephen Seiser at his last known address. The letter informed him that it was important for scheduling purposes to know whether he intended to appear and present evidence at the scheduled hearing on his discrimination claim. The letter advised Seiser that he must contact the ALJ within 20 days after the date of the letter if he wanted to continue to pursue his state claim. Further, the letter advised Seiser that if he did not contact the ALJ within 20 days of the date of the letter his state claim would be dismissed forever for failure to respond, pursuant to Wis. Stat., § 111.39(3).

On May 17, 2002, the ALJ issued a decision stating that Seiser failed to respond in writing or in any other manner within the time period specified in the certified mail sent to him. Accordingly, the ALJ dismissed Seiser's complaint with prejudice.

According to correspondence the ALJ sent to the parties dated May 21, 2002, a Ms. Dina Seiser left a voice mail message for the ALJ on May 20, 2002, asking the ALJ to call her. In this correspondence the ALJ states that she returned Ms. Seiser's phone call on May 21 and Ms. Seiser stated that she had sent a letter on behalf of Stephen Seiser in response to the ALJ's April 12, 2002 certified mail. The ALJ's May 21 correspondence states that she informed Ms. Seiser that she never received a letter from Ms. Seiser and that no such letter could be found in the case file. The correspondence from the ALJ states that a letter confirming receipt of Ms. Seiser's letter would have been sent to the parties if the ALJ had received one. The ALJ enclosed copies of letters that she had sent to various parties confirming timely receipt of complainant responses to department correspondence.

In his petition for review, Seiser asserts that "A response to correspondence from the department was indeed sent. It was mailed on April 14, 2002." Seiser's petition includes a copy of the alleged response sent on April 14, 2002.

Curiously, however, Seiser's petition also states the following:

"I have done everything I was supposed to do for this matter from the beginning, and because of one slip up by either the post office or myself, this matter is being dismissed?" (Emphasis added.)

The commission also notes that Seiser states in his petition that "I did indeed send the response in." but according to the ALJ's May 21 correspondence sent to the parties, a Ms. Dina Seiser claims that she had sent a letter to the ALJ on behalf of Stephen Seiser.

In any case, the commission finds that the ALJ's dismissal of Seiser's complaint in this matter must be affirmed. Wisconsin Statute Section 111.39(3), provides 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." (Emphasis added.)

The statute does not allow for any exceptions. The statute requires that a complaint be dismissed where correspondence from the department concerning the person's complaint is sent by certified mail to the person's last-known address and the person fails to respond within 20 days to that correspondence. That is what happened in this matter. Accordingly, the commission has affirmed the ALJ's decision dismissing Seiser's complaint.

cc: Attorney Molly Zillig

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uploaded 2002/06/24