P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RUSSELL J. HINSA, Complainant

PONSSE USA, INC., Respondent

ERD Case No. CR200401622, EEOC Case No. 26GA401162

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 August 5, 2005
hinsaru . rsd : 110 :

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


This case involves an allegation of a discriminatory termination of employment. The last day of the 300-day statute of limitations fell on April 15, 2004, a weekday on which State offices were open for business. As of that day, no complaint had yet been filed by the complainant. At 2:32 P.M. on that day, a legal assistant to the complainant's attorney telephoned the Madison office of the Equal Rights Division, and asked the receptionist who answered if the ERD would accept a complaint filed by facsimile transmission (fax). The receptionist answered that the ERD did accept complaints by fax in order to meet a deadline, but that a faxed complaint had to be followed by the original complaint in the mail. The receptionist also told the legal assistant that such a complaint could be faxed to (608) 266-1784; that was in fact the number for a fax machine located in the Office of the Secretary of DWD, located one floor above the offices of the ERD in the same building. The legal assistant did not ask or say anything about, and the receptionist did not say anything about, when the offices of the ERD closed that day, or what day such a faxed complaint would be considered to have been filed on if it was faxed after the close of business.

At 5:53 P.M. on the same day, the complainant's counsel faxed a complaint to the number which had been given to her legal assistant by the receptionist, and she also sent the original of the complaint to the ERD by overnight mail. On the following morning, April 16, 2005, the Office of the Secretary of the DWD hand-delivered the complaint which had come in to its fax machine, to the offices of the ERD, with a hand-written note attached, dated "4/16," and stating "Received 4/15 after 4:30 pm via fax in the Secretary's Office." The receptionist at the offices of the ERD then date-stamped the faxed complaint at 8:27 A.M., April 16, 2004. The original copy of the complaint which had been sent by overnight mail arrived later that morning and was date-stamped 11:24 A.M., April 16, 2004.

The respondent raised a timely objection that the complaint was not filed within the applicable statute of limitations. Thereafter, an Equal Rights Officer for the ERD issued a Preliminary Determination pursuant to Wis. Admin. Code § DWD 218.05, concluding that the complaint was untimely. The Preliminary Determination stated that "[t]he practice of the Division is that complaints sent by fax after normal business hours are considered filed the next business day," and concluded that the complaint was untimely because it was faxed after normal business hours on April 15, 2004, and was date-stamped and filed with the ERD on the following day, April 16.

The complainant appealed, and the matter was reviewed by an Administrative Law Judge. On this appeal to the ALJ, the complainant argued that his complaint should be considered timely because it was faxed to DWD on the 300th day after the respondent terminated his employment. In this connection he cited the administrative rules of the commission permitting fax filing of petitions for commission review, and administrative rules of the DWD Unemployment Insurance Division permitting fax filing of appeals of Initial Determinations as to UI eligibility. (1)    Finally, he argued that the equitable doctrines of tolling or estoppel should be applied to this case, based on the fact that his representatives had been told by the ERD receptionist that the complaint could be filed by fax. For its part, the respondent contended that the Division's rules do not allow for fax filing and that without such a rule, the Division's practice of permitting fax filing is invalid. It further argued that even if fax filing was considered to be permissible, the complaint was not properly filed by fax under the Division's current practice because it was faxed after the Division's close of business and because it was faxed to the office of the Secretary of DWD rather than to the Division. Finally, the respondent argued that there was no basis for applying equitable principles to excuse complainant's untimely filing, asserting that the complainant could not claim "excusable ignorance" of his statutory rights, and that any reliance by complainant's counsel on the information provided in the telephone conversation with the ERD receptionist was unreasonable.

After noting that the ERD's rules provide in Wis. Admin. Code § DWD 218.02(6) that "filing" means "the physical receipt of a document", the ALJ concluded that while the complainant's counsel could reasonably rely on what her legal assistant was told by the ERD receptionist as allowing her to file a complaint by fax, she could not reasonably rely on that as an assurance that she could wait until after 4:30 that day to do so. The ALJ noted in this regard, that Wis. Stat. § 230.35(4)(f) states, "Monday to Friday the offices of the agencies of state government shall open at 7:45 a.m. and close at 4:30 p.m.". She noted that neither the ERD nor the Office of the Secretary of the DWD had anyone stationed at reception or otherwise assigned to "physically receive" and date-stamp a filed or faxed document after the close of business at 4:30 P.M.

The ALJ concluded that because the ERD did not have an administrative rule addressing the matter of documents transmitted by fax (as did LIRC and DWD's Unemployment Insurance Division), it was not reasonable for complainant's counsel to assume that filing would be considered to be complete upon transmission. In this connection she observed that Wis. Stat. § 801.16(2)(1), which authorizes courts to adopt rules providing for filing of papers by fax, states that papers filed by fax after regular business hours are considered filed the next business day, and that it could not be said that there was a standard practice among governmental agencies in Wisconsin regarding the receipt of faxed documents.

Given her conclusion that the complaint was untimely because it was faxed after the close of business, the ALJ expressly declined to address the question of whether the ERD's practice of accepting the filing of complaints by fax was valid. 

Discussion -- The commission agrees with the ALJ's ultimate conclusion, that the complaint must be dismissed as untimely. However, the commission believes that it is advisable to address the question which the ALJ sidestepped. The commission finds the conclusion unavoidable, that the Equal Rights Division has, at present, no legal basis or authority to accept filing of complaints by fax.

The commission agrees with the respondent's argument to the ALJ, that the ERD's apparent practice of accepting filing of complaints by fax, is a general policy of the type which Wis. Stat. § 227.10(1) requires be adopted as a rule. The failure of the ERD to comply with the requirements of Chapter 227 for adopting this practice as a rule, means that the practice is invalid.

The lack of any affirmative basis in the ERD's administrative rules for accepting filing of complaints by fax, is not the only problem. Such a practice is in fact directly inconsistent with the ERD's current rules.

The Wisconsin Fair Employment Act provides that the ERD may receive and investigate complaints of violations of the Act if the complaints are "filed" with the department within 300 days of the alleged violation. Wis. Stat. § 111.39(1). As the ALJ noted, the ERD has expressly provided by administrative rule that for purposes including the determination of when a complaint is filed, "filing" means "the physical receipt of a document". Wis. Admin. Code § DWD 218.02(6). The transmission of data by fax, while it results in the creation of a document on the recipient's end, is nonetheless a purely electronic method of data transmission. In a decision holding that a petition for commission review could not be filed by e-mail, the commission concluded that a message sent electronically is not "physically received" within the meaning of § DWD 218.02(6). Farvour v. County of Winnebago (LIRC, Nov. 13, 2003). The commission similarly concludes that when the content of a document is transmitted by fax, the document is not "physically received" within the meaning of § DWD 218.02(6).

Furthermore, the ERD's administrative rules also provide that

A complaint may be filed in person with any division office, or it may be mailed to one of the following division offices.

(emphasis supplied). Wis. Admin. Code § DWD 218.03(2). Application of the principle expressio unius est exclusio alterius ("the expression of one thing excludes another"), supports the conclusion that other possible methods of filing a complaint -- including transmission by fax -- are not permitted.

The complainant's citation to rules of the commission and of the DWD Unemployment Insurance Division authorizing filing of certain documents by fax, does not and can not serve to authorize the filing of other kinds of documents with the ERD. Indeed, it only serves to illustrate the necessity of fax filing being expressly allowed for in administrative rules, and to highlight the absence of any such rule applicable to the ERD. The existence of Wis. Stat. § 801.16(2)(f), authorizing courts to adopt local rules permitting the filing of court papers by fax, serves as a further indication that the right to file papers by fax is something which must be expressly authorized, and which cannot be implied or assumed.

Therefore, the only complaint which was properly filed in this matter was the complaint sent by overnight mail on April 15, and received on the following day. That complaint was not filed within the statute of limitations. The only way that the complaint could be accepted, would be if this was considered to be required by application of equitable principles.

Courts have recognized two alternate, though related, doctrines justifying modification of a filing period: equitable estoppel and equitable tolling. Equitable estoppel can be invoked where an employee is aware of his rights but does not make a timely filing due to his reasonable reliance on his employer's misleading or confusing representations or conduct. Equitable tolling is premised on a party's "excusable ignorance" of their statutory rights. Olson v. Lilly Research Laboratories (LIRC, June 25, 1992).

Equitable estoppel clearly cannot be applied here, because the respondent played no part at all in the complainant's late filing of her complaint. This leaves the question of whether the statements made to complainant's legal assistant could be considered to have been the cause of excusable ignorance on the part of her counsel with respect to her right to fax a complaint.

Arguably, equitable tolling would be unavailable here simply because the complainant had retained and was being represented by counsel, who should have known that, whatever a lay receptionist at the ERD said, there was no legal basis or authority upon which the ERD could accept filing of complaints by fax. A recognized element of the doctrine of equitable tolling is that its appropriateness continues only until the employee receives actual notice or contacts an attorney. Olson, supra. This is based on the notion that counsel will know what the law is. Obviously, for example, application of the statute of limitations could not be avoided even in a case in which a representative of the ERD told a caller that the statute of limitations under the WFEA was, say, 330 days, if that caller was an attorney. In such a case, the attorney should reasonably be aware that the information is incorrect, and thus could not be found to have reasonably relied on it. In this case, the lack of any legal authority for the ERD to accept filing of complaints by fax is clear enough that a good argument could be made that an attorney should reasonably have been aware the information was incorrect, or at least questionable enough to warrant further research before it was relied on.

This need not form the basis for the decision here, however. Even if, as the ALJ concluded, the complainant's counsel could have reasonably relied on the information provided to her legal assistant by the ERD receptionist about the acceptability of filing a complaint by fax, this does not end the inquiry into whether the complainant's counsel acted reasonably in how she proceeded. The situation presented here, is functionally similar to the situation which would have existed if the ERD actually had a valid rule which stated that a complaint could be filed by fax if followed by a mailed copy -- but which did not state anything one way or the other about when a complaint submitted by fax would be considered to have been "filed". If there had been such a rule, of which complainant's counsel was aware prior to the close of business on the last day of the statute of limitations period, would it have been reasonable for counsel to simply assume, without engaging in any further inquiry, that a faxed complaint would be considered filed on that day even if faxed after the close of business, and to then wait until after the close of business to fax the complaint? The commission thinks not. Due diligence and reasonable concern for the rights of the complainant should have led to inquiry into that question. After all, as the ALJ noted, there is no uniform practice on this question among jurisdictions which permit the filing of papers by fax. While the administrative rules of the commission and of the DWD UI Division expressly provide that appeals filed by fax are deemed to be filed on the date of transmission, thereby effectively providing that they are deemed filed on the day of faxing up until midnight, the provisions of Wis. Stat. § 801.16(2)(f) which authorize circuit courts to adopt fax filing rules expressly provide that papers filed by fax after regular business hours are considered filed on the next business day.

Considering all of the circumstances here, the commission concludes that the complainant's counsel did not have a reasonable basis to rely on the information provided by the ERD receptionist as authority that she could wait until after the close of business on the last day of the statute of limitations period to fax the complaint to the ERD. For these reasons, it affirms the decision of the ALJ that the complaint should be dismissed.


cc: Stephen L. Knowles, Attorney for Respondent

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(1)( Back ) Wis. Admin. Code LIRC 1.025; Wis. Admin. Code DWD 140.01(2)(c)(7).


uploaded 2005/08/08