DELPHINE M FARVOUR, Complainant
COUNTY OF WINNEBAGO, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on August 14, 2003, finding that the respondent did not discriminate against the complainant based on disability, age, or in retaliation for having opposed a discriminatory practice. The last day on which a timely petition for commission review could have been filed was September 4, 2003. The complainant's petition for commission review was not filed until September 23, 2003.
In the absence of a timely filed petition for commission review, the commission is without authority to review the decision of the administrative law judge, and therefore issues the following:
The petition for review is dismissed.
Dated and mailed November 13, 2003
farvode . rsd : 164 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
On August 14, 2003, the administrative law judge issued a decision dismissing the complaint of discrimination. The last day to file a timely petition for commission review was September 4, 2003. The Equal Rights Division (hereinafter "Division") did not receive a petition by that date, and on September 18, 2003, it issued a letter notifying the parties that the case was being closed because no petition had been filed.
On September 23, 2003, the Division received a letter from the complainant, which is treated as her petition for review, in which she enclosed a copy of an e-mail allegedly sent to the Division on August 24, 2003, indicating a desire to file a petition and stating that a copy of the message would be sent via regular mail as well. However, petitions for commission review may not be filed by e-mail. The Division's rules specify that petitions must be "written." Wis. Admin. Code § DWD 218.18(1). The rules also state that "filing" means the physical receipt of a document. Wis. Admin. Code § DWD 218.02(6). A message sent electronically is neither written nor physically received, and the rules governing the filing of petitions for review do not contemplate that petitions may be filed by e- mail. (1)
With her petition the complainant also submits a copy of a letter addressed to the Division and dated August 25, 2003, in which she states she is enclosing a copy of an e-mail requesting a petition for review. However, the complainant's petition does not contain any reference to the August 25 letter, and she makes no assertion regarding whether or when such letter was sent. More importantly, the Division has no record of having received such a letter. As stated above, filing the petition does not refer to mailing the document, but means the physical receipt of the document. See Wis. Admin. Code § DWD 218.02(6). Where nothing was received from the complainant prior to September 23, 2003, it cannot be found that her petition was timely filed, whether or not the complainant is actually contending that she mailed an earlier letter of appeal. Accordingly, the commission must dismiss the petition as untimely.
Attorney Tony J. Renning
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(1)( Back ) The commission notes that the Notice of Appeal Rights which accompanied the administrative law judge's decision provided specific instructions regarding the filing of a petition for review, and explained that the written petition should be mailed or brought to the Division at one of two street addresses, with a copy mailed to each of the other parties. The Notice makes no mention of e-mail and contains no e-mail address. Had the complainant read the instructions contained in the Notice of Appeal Rights, she would have recognized that a petition cannot be filed by e-mail.