746 Dismissals for failure to respond to correspondence from the department

The Division’s rules do not say anything about what time a document filed by email will be regarded as having been received by the Division and do not contain a requirement that an email must be submitted by the end of state office hours in order to be considered timely. If the Division wants to require that responses submitted by email be received no later than 4:30 p.m. (the end of state office hours), it must clearly notify parties of this fact. Buckner v. Capitol City Tree Experts, Inc. (LIRC, 06/30/23).

The 20-day statute, Wis. Stat. § 111.39(3), does not specify whether the complainant’s response to Division correspondence must be received by the 20th day or whether it is sufficient for a response to have been submitted by the 20th day. If the Division is requiring physical receipt of the document by the end of the 20th day it must clearly notify parties of this fact. Buckner v. Capitol City Tree Experts, Inc. (LIRC, 06/30/23).

Dismissing a complaint for failure to respond to a certified letter that the Complainant never received and had no reason to expect he would be receiving based upon the length of time since his last communication with the ERD would frustrate the purpose of the statute. Pimentel v. Cnty. of Waukesha (LIRC, 09/17/21).

The department shall dismiss a complaint if the Complainant fails to respond within 20 days to correspondence from the department which poses some question for the Complainant to answer and which has the purpose of obtaining information the Equal Rights Division needs to carry out its case management goals, so long as the correspondence was sent by certified mail to the Complainant’s last-known address. The department’s correspondence met these requirements. Dismissal was warranted where the Complainant moved from her daughter’s address and failed to either inform the department of her new address or arrange to be notified in the event of her daughter’s receipt of mail from the department. Davidson v. State Collection Serv., Inc. (LIRC, 08/13/19).

Wisconsin Stat. § 111.39(3) statute, which provides for dismissal of the complaint where a party has failed to respond to correspondence from the department, requires that the department’s correspondence be sent by certified mail. Dismissal of the complaint is not permissible where the letter was sent by regular mail. Carter v. Community Action, Inc. (LIRC, 05/17/19).

Where the requirements of sec. 111.39(3), Wis. Stats., were satisfied, dismissal of the matter was required by law. There is no exception where a party can show that the failure to respond in a timely manner was for a reason beyond its control. Vandehey v. Batzner Pest Mgmt. (LIRC, 09/16/16).

The complaint was dismissed after the Complainant failed to respond to a certified letter from the Equal Rights Division within 20 days. Subsequently, the Complainant’s attorney asked the Division to place this matter in abeyance pending resolution of the complaint filed in federal court, and the Division placed the matter in abeyance. However, because the requirements of sec. 111.39(3), Wis. Stats., were met, dismissal of the matter was required by law, and the fact that the Division placed the matter into abeyance after issuing its order of dismissal did not serve to resuscitate the case. Murphy v. UW-Madison Bd. of Regents (LIRC, 04/11/16), aff’d sub nom. Murphy v. LIRC (Dane Co. Cir. Ct., 04/15/17).

Although the statute provides for dismissal of cases where the Complainant fails to respond within 20 days to a certified letter from the Department mailed to his last known address, the intent of the statute is frustrated when the Complainant does not actually receive the letter. In this case, the Complainant did not receive the Department’s certified letter because it was sent to an address where he no longer resided and he had not kept the Department apprised of his new mailing address. Considering the length of time that had elapsed since the Department’s last communication with the Complainant (more than a year), and the fact that the Department had provided him with inaccurate information regarding the processing of his case, the Commission concluded that it would be inappropriate to dismiss his case on the basis of his failure to respond to the certified letter. Xu v. Epic Sys. Corp. (LIRC, 03/26/15).

For purposes of the statute, the certified 20-day letter is required to be sent to the Complainant himself, and not just to the Complainant’s attorney. Lancerio v. Genesis Group (LIRC, 09/26/14).

The Department is encouraged to rely on options less drastic than a 20-day letter, with the accompanying sanction of dismissal of the complaint, when attempting to elicit information from parties. Lancerio v. Genesis Group (LIRC, 09/26/14).

The Division properly mailed a 20-day letter to the Complainant concerning her complaint, and she did not make a timely response. The Complainant acknowledged in her petition for review that she received the letter a week before the deadline for responding to the Division, which was enough time to make a timely response. She attempted to do so, but failed to put postage on her response, and the post office returned the response to her instead of delivering it to the Division. The allegations of the petition do not state a plausible case that the untimeliness of the Complainant’s response was not her fault. It is not necessary, therefore, to remand for a hearing on whether the Complainant’s complaint was properly dismissed. Conard v. A.L. Schutzman Co. (LIRC, 01/15/14).

In certain circumstances, considerations of due process require that a Complainant receive a hearing on his assertion that he never received notice of the Department’s certified letter. Laboy v. Mantissa Corp. (LIRC, 03/21/12).

The complaint was dismissed after the Complainant failed to respond to a certified letter from the Equal Rights Division within 20 days. The certified letter informed the Complainant that a response was required and that the information was needed by the Equal Rights Division in order to process and make a decision regarding her complaint. This was purposeful correspondence. The Complainant was not entitled to a hearing on her assertion that she never received the Department’s certified letter because she conceded that she was no longer residing at the address to which the certified letter was mailed, even though this was her address of record with the Equal Rights Division at the time. Maxwell v. Aramark Educ. Serv. (LIRC, 11/30/10).

A complaint was properly dismissed for failure to respond to correspondence from the Department where the Complainant admitted that the reason he did not go to the post office to claim the certified letter from the Equal Rights Division was that he thought it was mail from a bill collector. Had he gone to the post office to ascertain who the mail was from, he would have learned that it was correspondence from the Department regarding his discrimination complaint. Hobson v. USA Sec. (LIRC, 01/31/08).

The Equal Rights Division dismissed a complaint based upon the Complainant’s failure to respond to correspondence sent by certified mail to her last known address. The Complainant appealed the dismissal to the Labor and Industry Review Commission indicating that she had never received the Department’s certified mail. Due process considerations require that the Complainant receive a hearing on her assertion that she never received notice of the Department’s certified mail. McGee v. County of Milwaukee (LIRC, 08/18/06).

The Administrative Law Judge inappropriately dismissed a complaint based upon the Complainant’s failure to respond to a certified letter. The certified letter sent by the Administrative Law Judge was confusing. The letter stated, “If you wish to pursue your complaint, you have twenty days to respond to [the Respondent’s] motion to dismiss.” The ALJ enclosed a “Request to Withdraw Complaint” form with the certified letter. It may not have been clear to the Complainant whether she needed to file her brief on the motion to dismiss within the twenty-day period in order to keep her charge alive, or whether she simply needed to indicate her intent to proceed in order to do so. Furthermore, the correspondence from the Administrative Law Judge was not purposeful. It appears that the only factor triggering the letter was the withdrawal of the Complainant’s counsel. There was nothing in the file to indicate that the Complainant was considering abandoning her case. All parties, whether or not represented by counsel, should be afforded a full and fair opportunity to participate in the hearing process. Starks v. SBC Ameritech (LIRC, 02/09/06).

The Equal Rights Division 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 Department’s correspondence advising the Complainant that a response was required within twenty days was “purposeful.” The Complainant’s failure to respond to this letter justified the dismissal of her complaint. Rodgers v. Lutheran Home (LIRC, 12/30/05).

The Equal Rights Division sent the Complainant a letter concerning his charge of discrimination by certified mail. The letter noted that his case had been in abeyance status for an extended period of time while he pursued the matter in another forum. The letter indicated that if this matter had been resolved the Complainant should indicate that the case should be closed, or, if he wanted the matter to remain open, to send a letter explaining his reasons for requesting that it remain open. The letter advised the Complainant that if a response was not received within twenty days his case would be dismissed pursuant to sec. 111.39(3), Stats. The correspondence from the Department concerning the Complainant’s complaint was purposeful correspondence. The Department did not know the status of the Complainant’s federal claim. It could not be expected to defer action on the Complainant’s court case indefinitely. The Department’s subsequent dismissal of the complaint for the Complainant’s failure to respond to the letter within the specified time was appropriate. Rogers v. Wis. Knife Works (LIRC, 12/22/05).

A certified letter from the Department was correctly addressed to the Complainant. It was returned to the Equal Rights Division from the post office with the handwritten words “she doesn’t live there” and “unknown” on the envelope. The envelope also contained a “return to sender” stamp from the post office and a typewritten, affixed, post office notice which reads, “Return to Sender, Attempted – Not Known, Unable to Forward.” The complaint should not have been dismissed for failure to respond to correspondence from the Department where the Complainant denied receiving any certified mail. The words “she doesn’t live there” written on the envelope provide no indication that this was information provided by someone from the Complainant’s household. A Complainant cannot be penalized by having her complaint dismissed for refusal to timely respond to correspondence from the Department sent by certified mail when some unknown person not of the Complainant’s household, for whatever reason, has misinformed the postal carrier about the Complainant’s place of residence. Nzeaka v. South Point Healthcare (LIRC, 08/26/05).

The legislative purpose underlying sec. 111.39(3), Stats., is frustrated by the failure of the postal service to follow its typical practice of leaving notice for the intended recipient that delivery of a certified letter has been attempted. Johnson v. Badger Meter (LIRC, 07/29/05).

When a Complainant’s failure to respond to a twenty-day letter resulted from actions within his control, sec. 111.39(3), Stats., does not permit an exception. The underlying case must be dismissed. In this case, the Complainant asserted that he did not receive the certified letter because he was out of town. Apparently, the Complainant did not make arrangements for the monitoring or forwarding of his mail during his absence. The dismissal of his complaint for failure to respond to correspondence from the Department is affirmed. Johnson v. Badger Meter (LIRC, 07/29/05).

Sec. 111.39(3), Stats., requires the use of certified mail for the Department correspondence. However, because of the peculiarities associated with such mailing service, certified mail is not always the best means of assuring that the intended recipient will receive notice of the Department’s correspondence. In the instant case, the failure of the post office to leave the Complainant notice of its attempted certified mail delivery frustrated the purposes of the statute. Accordingly, the decision dismissing the complaint was set aside and the case was remanded for further proceedings. Unseth v. County of Vernon (LIRC, 06/30/05).

The Complainant’s complaint was properly dismissed because she failed to respond within 20 days to correspondence concerning her complaint. The Department sent the correspondence by certified mail to the Complainant’s last known address. The correspondence from the Department was purposeful in that it inquired if the Complainant wanted the Equal Rights Division to conduct a second independent investigation of her complaint, which had been dismissed by the EEOC. The correspondence from the Department advised the Complainant that a written response was required within 20 days. The Complainant failed to respond within that time period. Wren v. Columbia St. Mary’s Hosp. (LIRC, 11/26/04).

The use of “twenty-day letters” should be restricted to cases where there is a particular reason to ask the Complainant if he is still planning to appear and proceed with his case. Where there is a particular reason for the inquiry, the practice of “twenty-day letters” does not have the effect of being merely a de facto procedural requirement imposed on unrepresented Complainants. Furthermore, where there is a particular reason to ask a Complainant if he is still planning to appear and proceed with his 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. Frederick v. Initial Security (LIRC, 08/28/03); Martinez v. Water Street Brewery (LIRC, 08/28/03); Perez v. Aurora Sinai Samaritan (LIRC, 08/28/03).

There are two significant elements which are required in order for a letter to constitute “correspondence from the department concerning the complaint” within the meaning of sec. 111.39(3), Stats. First of all, the correspondence must require a response. The correspondence must pose some sort of question and inform the Complainant that a response is required. Secondly, the correspondence from the department concerning the complaint must be purposeful. The response sought from the Complainant must assist the department in obtaining information which it actually needs to process and decide cases, and it must advance the department’s legitimate goal of efficiently managing its caseload, as well as the interests of administrative justice. Correspondence from the department which does not meet these requirements does not justify the dismissal of the complaint. Palmer v. Wis. Pub. Serv. Corp. (LIRC, 07/30/03).

The Complainant included the cost of expedited mail delivery, delay in regular mail service and lack of a telephone as reasons for his failure to timely respond to a letter from the Department. It is difficult to believe that the Complainant could not have obtained assistance from a friend or neighbor so that a timely response could have been made. In any event, 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 to that correspondence within twenty days. Hernandez v. Spanish Ctrs. of Racine, Kenosha & Walworth (LIRC, 01/23/02).

The Complainant stated that he did not receive correspondence from the Division because he was incarcerated. There was nothing in the case file to indicate that the Complainant had ever notified the Division that he was incarcerated and had a new address. Therefore, his failure to respond to correspondence from the Department within twenty days required dismissal of his complaint under sec. 111.39(3), Wis. Stats. Wingo v. Pepsi-Cola Gen. Bottlers (LIRC, 01/23/02).

The Complainant submitted evidence that clearly established that there was a problem with his mail delivery. Sec. 111.39(3), Stats., does not seem to contemplate whether reasons for not responding to a certified letter from the Department are reasonable. However, the purpose of the statute was frustrated when a certified letter with the correct address was not delivered to that address. Accordingly, the Department’s dismissal of the complaint was reversed. Wilson v. LIRC (Milwaukee Co. Cir. Ct., 01/11/02).

The Complainant contended that he did not receive a letter from the Equal Rights Division because he was incarcerated. The correspondence from the Department was sent to the Complainant’s home address. The Complainant could have received mail from the Department at the correctional institution had he provided the Department with that address. Manning v. INX Int’l Ink (LIRC, 03/17/00).

The law requires dismissal of the case if the Complainant fails to respond within twenty (20) days to correspondence with the Department concerning the complaint, which is sent by certified mail to his last known address. This provision applies even when compelling personal circumstances exist. Manning v. INX Int’l Ink (LIRC, 03/17/00).

The Complainant contended that an inexperienced postal carrier who did not have knowledge of his apartment number caused the delay in his receipt of a 20 day letter. However, substitute postal carriers are a predictable occurrence. It was incumbent upon the Complainant to have provided the department with his full address. His failure to have done so means that he cannot be heard when his subsequent non-receipt of correspondence from the department is due to that failure. Brown v. Miller Brewing Co. (LIRC, 04/27/95).

On review, the Complainant argued that she had mailed her response to the Equal Rights Division on time, but subsequently learned that her letter remained in the mailbox for three days before it was picked up by the postal service. Even if this explanation were accepted, it would not constitute a basis for overturning the dismissal of the complaint. Sec. 111.39(3), Stats., does not provide for any exception to the requirement that a complaint be dismissed when the Department does not receive a response to its correspondence within twenty days. Prill v. Country Kitchen of Oshkosh (LIRC, 11/16/94).

The Complainant argued that since her response letter (which was received by the Equal Rights Division approximately ten days after the response period ended) was received by the Equal Rights Division prior to the ALJ’s dismissal order, the dismissal of her case was too harsh a remedy. However, sec. 111.39(3), Stats., provides for no exception for “substantial compliance” with the statute. Behlen v. Hartford Automotive Parts Co. (LIRC, 04/26/94).

The Department improperly dismissed a complaint of failure to respond to correspondence from the Department within 20 days where the Department misaddressed the Complainant’s certified letter. Cera v. Cooper Power Sys. (LIRC, 01/14/94).

Although sec. 111.39(3), Stats., requires only a response from the Complainant within 20 days, the Administrative Law Judge's request for a written response does not preclude an order of dismissal since the Complainant failed to timely respond in any fashion. Roth v. Cornell Sch. Dist. (LIRC, 11/04/93).

If the Complainant's response to certified correspondence from the Department requiring response within 20 days is late, dismissal of the complaint is absolutely required. Daniels v. Marcus Corp. (LIRC, 07/14/93).

Where the Complainant failed to notify the Department of his last known address, the failure of the post office to forward his mail after he moved did not excuse his failure to timely respond to correspondence from the Department, and his complaint was properly dismissed under sec. 111.39(3), Stats. Pohl v. Thong (LIRC, 05/12/93).

The dismissal of a case for failure to timely respond to correspondence from the Department was set aside where the certified letter to the Complainant was misaddressed. Evidence that some earlier correspondence had been similarly misaddressed but had been delivered to the Complainant did not warrant a different conclusion. Powell v. Kohl’s (LIRC, 04/30/92).

The Complainant may have been confused as to when he had to respond to the certified letter from the Administrative Law Judge, since the letter, which required a response within 20 days, was accompanied by a letter from the Equal Employment Opportunity Commission which required a response within 30 days. Nevertheless, sec. 111.39(3), Stats., provides for no exceptions. It makes dismissal of a complaint mandatory when there is a failure to respond within 20 days to any correspondence from the Department. If the Complainant was confused about when the response to the Equal Rights Division was due, he should have contacted the Administrative Law Judge for clarification. Dixon v. Genesis Program (LIRC, 07/22/91).

If sec. 111.39(3), Stats., was interpreted as requiring actual receipt by the Complainant before the 20-day period began to run, this would negate the whole purpose of the law as it would prevent the Personnel Commission from dismissing a complaint filed by a person who had moved without providing a forwarding address, since such a person would never receive the correspondence. In addition, the response to the 20-day letter must actually be received by the Personnel Commission within the 20-day period. It is not enough that the response was mailed to the Commission within the 20-day period. King v. DHSS (Wis. Pers. Comm’n, 05/29/91); rehearing denied, 06/27/91.

The complaint was properly dismissed when the Complainant failed to file a timely response to a 20-day letter, even though the Complainant argued that his response to the letter was affected by problems with the mail service and by intervening holiday times. If the legislature had intended that the 20-day time period should be tolled because of the vagaries of the U.S. postal system or by intervening holidays, it would have given some indication of this in the language of the statute. Jones v. DOT (Wis. Pers. Comm'n, 06/17/91).

The Commission remanded the case to the Equal Rights Division for a hearing on the issue of the Complainant's failure to respond to a certified 20-day letter where (1) the Complainant denied receiving the certified letter, (2) the Complainant submitted a letter purportedly signed by the postmaster indicating that the post office had not received a certified letter for the Complainant, and (3) the Complainant submitted an affidavit stating that no one by the name of the person who allegedly signed the receipt for certified mail had ever been present at his address. Peterson v. K-Mart (LIRC, 05/24/91).

A complaint was dismissed when a response to a 20-day letter was received from the Complainant on the 21st day after the letter was sent. The 20-day period referred to in sec. 111.39(3), Stats., commences on the date the letter is mailed. Block v. UW-Madison Extension (Wis. Pers. Comm’n, 07/27/89).

The 20-day period provided by sec. 111.39(3), Stats., within which a Complainant must answer an inquiry concerning their case or be subject to dismissal of the complaint, runs from the date on which the correspondence is mailed to the Complainant, not from the date on which the Complainant receives it. Jackson v. DHSS (Wis. Pers. Comm’n, 03/10/88).

The language of sec. 111.39(3), Stats. that “the Department shall dismiss a complaint if the person filing the complaint fails to respond within 20 days to any correspondence concerning the complaint,”is mandatory, and the 20-day response period is measured from the date of the mailing of the correspondence to the date on which the party's response is received. Schilling v. Walworth County (LIRC, 05/10/84).

Where the Equal Rights Division failed to send correspondence to the Complainant’s last known address as required by statute, its dismissal of the complaint is reversed. Marcoux v. Ashwaubenon Pub. Sch. (LIRC, 01/23/80).