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


d/b/a  MONDOVI FOODS CORP, Respondent

ERD Case No. CR200601472

An administrative law judge (ALJ) for the Equal Rights Division (ERD) of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has reviewed the petition and the positions of the parties. Based on its review, the commission issues the following:


Pursuant to Wis. Stat. § 111.39(5)(b), the commission sets aside ALJ Grandberry's February 20, 2007, decision in this case, and remands this matter to the Equal Rights Division for further proceedings consistent with this decision.

Dated and mailed April 27, 2007
carlsro . rrr : 115 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


The complainant filed two separate charges with ERD. In the one under consideration here, filed on April 26, 2006, he alleges that Mondovi Food Corporation discharged him because of his arrest and conviction record. In the second, filed on May 3, 2006, he alleges that Kelly Services failed to hire him because of his arrest and conviction record.

In filing these charges, the complainant stated a mailing address on Brian Street in Eau Claire.

On August 4, 2006, the complainant provided notice to ERD that his mailing address had changed to 1743 91/2 Street in Barron. The complainant used this address on correspondence to ERD dated August 8, 2006.

On September 11, 2006, ERD issued initial determinations in these two matters finding no probable cause to believe that the complainant had been discriminated against as alleged. These determinations were mailed to the complainant's address in Barron. The last day to file a timely appeal of these determinations would have been October 11, 2006.

The initial determinations were returned to the department by the postal service on September 18, 2006. The envelopes both state "return to sender" and "attempted-not known."

A handwritten note in the case file, written on yellow legal paper and dated "9/18/06," states that, "The address on these envelopes is the last known address I have for this c[omplainant]." The note appears to be signed by Mark Robarge, the equal rights officer who issued the initial determinations. The complainant alleges that Robarge had both his home phone and cell phone numbers.

On October 30, 2006, the complainant phoned ERD to inquire as to the status of the investigation. He was told that the initial determinations had been mailed to his address of record on September 11 but returned to ERD by the postal service. The complainant requested that the initial determinations again be mailed to his Barron address, and Jim Chiolino, an Equal Rights Supervisor, did so on October 30.

The complainant filed appeals of the initial determinations. These appeals were dated November 22, postmarked November 24, and received by ERD on November 27, 2006.

The timeliness issue raised by these filings was referred to ALJ Grandberry, and he issued decisions on February 20, 2007, concluding that the complainant's appeals were not filed within 30 days of the September 11 date of the initial determinations, and, by operation of Wis. Adm. Code § DWD 218.08, were required to be dismissed as a result. The complainant filed a timely petition for commission review of these decisions.

Wisconsin Administrative Code § DWD 218.08 provides as follows, as relevant here:

DWD 218.08. Appeal of initial determination of no probable cause.

(1) WHEN FILED. Within 30 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause....

(2) DISMISSAL FINAL IF NO APPEAL FILED. If no timely written request for a hearing is filed, the initial determination's order of dismissal shall be the final determination of the department.

ALJ Grandberry, relying upon the absence of language in this provision permitting any exception to its application, dismissed the complainant's appeals of the no probable cause determinations.

This result is troubling, however, given that it appears from the information the complainant has provided that he made a reasonable effort to arrange for the proper delivery of his mail after he moved from Eau Claire to Barron, and had no other reason to become aware of the existence of the determinations during the appeal period.

Moreover, such a literal and mechanical application of Wis. Adm. Code § DWD 218.08 could lead to absurd results. For example, assume that a dated initial determination, through an oversight, was never actually mailed by the department. If the literal language of the code provision were applied, the underlying charge could be dismissed if an appeal were not filed within 30 days of the date on the determination. As a further example, assume that the department, through a clerical error, mailed a dated initial determination to the wrong address and it was returned to the department by the postal service after the appeal period had expired. Again, the charge could be dismissed even though the complainant was not at fault and had no opportunity to receive the determination within the appeal period.
In the commission's opinion, it is implicit that Wis. Adm. Code DWD 218.08 contemplates that a complainant have a reasonable opportunity, during the appeal period, to receive a no probable cause initial determination, or to otherwise become aware of its existence, in order for the 30-day filing period to run.  (1)
As a result, this matter is being remanded to ERD for the purpose of providing the complainant the opportunity to prove that, without fault on his part, he did not have this opportunity; and for further processing of his appeals if he successfully sustains this burden of proof.

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(1)( Back ) A somewhat similar situation was considered in Wilson v. LIRC and New Horizon Center, Case No. 01CV006492 (Wis. Cir. Ct. Milwaukee Co., Jan. 11, 2002). In that case, a 20-day certified letter was issued by the department pursuant to Wis. Stat. 111.39(3). Although the postal service tried to deliver it to the complainant three times, it failed to provide notice to her of these delivery attempts or of the existence of the letter, and she never received it. The circuit court reversed the commission's dismissal of the complainant's charge, reasoning that the purpose of requiring certified mail is to ensure delivery, and this purpose "is frustrated when a certified letter with the correct address is not delivered to that address." See, also, Unseth v. County of Vernon, ERD Case No. 200404469 (LIRC June 30, 2005).


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