WALTER J. NEMEC, Complainant
SCHOOL DISTRICT OF WASHBURN, Respondent
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 reviewed the file and considered the argument submitted and based thereon it makes the following decision.
Background -
Walter Nemec worked for the Washburn School District ("WSD"). He was discharged from that employment in 2008. In February 2011, Nemec filed a complaint against WSD alleging disability discrimination and retaliation. The complaint was first investigated by the EEOC, which dismissed it as untimely. Subsequently, the ERD started an investigation into Nemec's complaint. On July 26, 2013, the ERD issued a preliminary determination under Wis. Adm. Code § DWD 218.05, dismissing the complaint on the grounds that it was untimely.
Nemec had a telephone conversation with the ERD investigator just a few days after the preliminary determination was issued. (1) It appears that in this conversation, the fact that Nemec had vision problems was discussed. Nemec indicated that he had a magnifying device and that his wife read documents to him when she was available. Also in this conversation, the investigator advised Nemec of his appeal rights. After this conversation, the investigator mailed Nemec a reproduction of the preliminary determination in larger print, for his convenience. Nemec received that large print copy of the determination on July 31, 2013.
The ERD's rule concerning preliminary determinations provides that they may be appealed by filing a written appeal with the department within 20 days of the date of the preliminary determination. Wis. Adm. Code § DWD 218.05(3). The 20th day after July 26, 2013, was Thursday, August 15, 2013. However, no written appeal was received by the department from Nemec, until Monday, August 19, 2013. That appeal, a three-page handwritten letter with attachments, contained no explanation for (or even acknowledgment of) the fact that it was late.
On August 23, 2013, the ERD sent Nemec a letter informing him that his appeal had not been filed within the 20-day time limit for appealing a preliminary determination and that his case had therefore been closed.
In response, Nemec telephoned the ERD to object to the closing of his case, and he was advised that he could submit a letter seeking reconsideration. Nemec then sent the ERD a letter on September 10, 2013, in which he stated:
I'm writing you today in regard to my appeal request being closed to the 20 day statute! I'm legal blind and that is the reason for my complaint! I called your office on July 26, 2013 and told that I could not read the denial record and my wife was out of town for another 5 days! And said I can read the large print Social Security sends me! Your office sent me a large print letter of denial - see enclosed. I did not receive that letter until July 31, 2013! I believe that your office did accommodate my vision disability but not on the 20 day time statue. I strongly believe the statue should go off the large print notice! Which give my appeal the proper time statue.
Subsequently, after a review of the matter, an ALJ issued an "Order Of Dismissal Late Appeal," on November 1, 2013, which ordered that the complaint be dismissed "based upon the preliminary determination that was not appealed in a timely manner." With the copy of this Order sent to Nemec, the ERD advised him that he could file a petition for review of the order by LIRC.
Nemec filed such a petition for LIRC review on November 21, 2013. That petition for LIRC review focused almost entirely on the underlying issue as to the timeliness of Nemec's complaint. The only part of the petition for LIRC review which was relevant to the untimeliness of his appeal of the preliminary determination, was an apparent response to a statement in the ALJ's decision, that Nemec had "never asked for any accommodation for his eye sight until after the preliminary determination had been issued." In his petition, Nemec wrote:
I would also like to note that my vision is "legal blind." I need large font print! I contacted Workforce Development prior to my having to respond to WSD response to my complaints! Which WSD did not respond to in a timely manner but at such time I advised Ms. Nichols that I was legally blind and would like to receive response on large Font!
Discussion -
In this case the preliminary determination was issued on July 26, 2013, but no written appeal was received by the department until August 19, 2013, which was 24 days later. As the ALJ noted, the rule applicable to appeals of preliminary determinations requires that such appeals be filed in writing within 20 days of the date of the order, and it does not provide any exceptions for late appeals.
The commission has considered the arguments made in Nemec's petition for LIRC review, but it finds them unpersuasive.
It does appear to be undisputed that Nemec has vision problems. However, it also appears that Nemec has some ability to read depending on print size. Nothing in the file describes quantitatively how large print needs to be for him to be able to read it. There are a number of examples of Nemec's handwriting in the file, and it is normal-sized and for the most part legible; the file also contains a typed letter from Nemec to WSD which he chose to print in standard-sized print.
In addition, careful review of all of the documents in the file in this matter has shown no record of Nemec having made any request to the investigator for documents to be provided in large print, prior to their telephone conversation of July 29. On March 13, 2013, the ERD investigator (Nichols) asked WSD to submit a response within 45 days. WSD's counsel submitted a response to the investigator on April 16, 2013, which was well within 45 days. The investigator then transmitted a copy of that response to Nemec on May 7, 2013. The response from WSD, and the investigator's letter transmitting that response, were in standard-sized (not large) print. Nemec then responded with a three-page handwritten letter to the investigator on May 22, 2013. That letter contained no request that he be provided documents in large print, and no indication that Nemec had any difficulty reading the materials which had previously been provided to him. The July 26, 2013 preliminary determination subsequently issued by the investigator was in standard-sized (not large) print. It contained no indication that Nemec had ever advised the ERD investigator that he would like to receive the response to his complaint in a large font. There are also no indications in the investigator's log, that Nemec had ever advised the ERD investigator that he would like documents in large print prior to their July 29 conversation.
The commission has also considered the arguments made by Nemec in his September letter requesting reconsideration of the dismissal of his complaint. However, it also finds those arguments unpersuasive.
It does appear that Nemec mentioned his vision problems to the investigator soon after the determination was issued and that the investigator then mailed Nemec a reproduction of the determination in larger print. It remains the case, though, that the determination was issued on July 26, that the 20th day after that was August 15, and that Nemec's appeal was not received by the ERD until August 19. Under Wis. Adm. Code § DWD 218.05(3), it was therefore untimely.
Nemec argued that the timeliness of his appeal of the preliminary determination should be measured from the date of his receipt of the large print copy which the investigator sent him. The commission disagrees. The applicable rule provides that the timeliness of an appeal of a preliminary determination should be measured from "the date of the [preliminary determination]" Wis. Adm. Code § DWD 218.05(3). The date of the preliminary determination in this case was July 26, 2013. The investigator's mailing of a large print version of the preliminary determination to Nemec on July 29 did not constitute the issuance of a new determination. The content of that large print version was exactly the same as that of the original which was issued on July 26. In addition, the large print copy of the preliminary determination was not dated. The fact that it was identical in substance and was not issued with a new date establishes that it was not a new determination. Because it was not a new determination, it did not have any effect on the due date for an appeal of the original July 26 preliminary determination.
Based on its review and for the foregoing reasons, 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
January 30, 2014
nemecwa_rsd:110: 716
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
NOTE:
The ALJ correctly noted that the law did not provide a "good cause" exception allowing late appeals of preliminary determinations to be considered, but he also stated that even if it did, he would not find "good cause" to have been established.
While it wishes to emphasize that this is pure dicta, in view of the fact that the law clearly does not provide for any such standard, the commission makes the following observations in the interest of fully explaining its views about this case.
The commission agrees with the ALJ's observations, that Nemec received and responded to documents in standard-sized text throughout this proceeding, that he never asked for any accommodation for his eyesight until after the preliminary determination had been issued, and that when he did ask he was accommodated by being sent a large print version of the determination which he received within just a few days. It also agrees that it appears from the notes of the investigator that she informed Nemec of the fact that the decision was adverse to him, in their phone conversation.
The commission also agrees with the ALJ's observation, that after Nemec received the large print version of the preliminary determination on July 31, he still had a significant amount of time remaining within which to file a timely appeal, during most of which time his wife would have been back at their home and able to assist him in reading documents.
The commission would also note that Nemec appears to have unnecessarily delayed his submission of his appeal, even after he had received the large print version of the preliminary determination and was clearly aware of the appeal deadline. Nemec's appeal of the preliminary determination begins by stating,
I am writing your office on August 12, 2013, to request Appeal on your determination to dismiss my complaint against my employer the (WSD) Washburn School District...
(emphasis supplied). However, Nemec obviously delayed the submission of this appeal, because it was not actually received at the ERD (2) until August 19, 2013 - a week later. Had Nemec mailed in his appeal on the day he was writing it (August 12, 2013), it would most probably have been timely received by the ERD.
cc:
Victoria Seltun, Attorney for Respondent
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