Defense counsel in employment actions before the Wisconsin Equal Rights Division (“ERD”) routinely encounter situations where a complainant is difficult to communicate with in terms of discovery, setting depositions, or the like. Often, counsel has no choice but to make numerous, repeated attempts before seeking dismissal as the ERD tends to bend over backwards for complainants before dismissing the case. Even after seeking dismissal, the ERD often will grant a complainant several additional opportunities to make things right. However, there may be an alternative dismissal tool that defense counsel can utilize to more effectively seek dismissal of a non-cooperative or non-responsive complainant.
The Wisconsin Fair Employment Act contains the following provision:
“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) (2013-14 updated through 2015 Act 392) (emphasis added).
In Murphy v. UW Madison Board of Regents, ERD Case No. CR201203762 (LIRC 4/11/16), the complainant had originally cross-filed his discrimination complaint with the EEOC and the ERD. The EEOC had conducted its investigation and issued complainant a standard 90-day right to sue letter. As is customary, upon receiving notice of the EEOC’s determination, the ERD then sent a letter to complainant, who was represented by counsel, asking whether complainant would like the ERD to conduct their own separate investigation under state law.
Pursuant to Section 111.39(3) of the Wisconsin Statutes, the letter was sent by certified mail and requested a response within 20 days or, it warned, the complaint “would be dismissed.” It is unclear whether the letter was sent to complainant’s attorney or the complainant. In any event, during this time frame, the complainant and his attorney had in fact filed a federal lawsuit and were continuing to pursue relief before the federal court. The complainant and his attorney did not respond within the 20 days and the ERD issued a notice of dismissal shortly thereafter. Upon receiving the notice of dismissal, the complainant’s attorney sent a letter to the ERD asking that the investigation be held in abeyance while the federal lawsuit was pending. The ERD granted the request for an abeyance of the investigation.
Frankly, this would be the result we would typically anticipate. Despite technical non-compliance, the ERD is very hesitant to dismiss cases without giving the complainant their “day in court.” Thankfully, the respondent challenged this decision and the Administrative Law Judge held that the case must be dismissed if there was no response within 20 days – seemingly regardless of any circumstances. It did not appear to matter that the complainant was still pursuing relief in federal court, that the complainant was represented by counsel, or that there might have been other equitable arguments justifying not dismissing the case. The Labor and Industry Review Commission agreed with the ALJ on review and upheld the dismissal. If the complainant does not respond under Section 111.39(3), the ERD must dismiss the case and there is no exercise of discretion as to whether it is fair or gives the complainant their “day in court.”
While the ERD typically looks for creative ways to allow an employee’s claim to go forward, it appears they took a hard, firm stance on the issue of failing to respond within 20 days under Section 111.39(3). If a complainant, whether represented or pro se, ever fails to respond to any communication that is sent from the ERD via certified mail, defense counsel should immediately seek dismissal and cite to this decision by the LIRC.
Further, if a complainant is proving to be non-cooperative or non-responsive, instead of seeking dismissal through the typical route, defense counsel may wish to use this alternative method. Defense counsel could send a simple request to the assigned ALJ or the ERD indicating that the complainant has been non-responsive to correspondence or discovery and request that a certified letter be sent to the complainant under Section 111.39(3). If the complainant fails to respond, the ERD must dismiss the case, according to the LIRC decision. This may prove a more effective and efficient method of obtaining dismissal of non-cooperative complainants.
If you have questions about this article, please contact an attorney at Mallery & Zimmerman.