ROXANNE I SIPPRELL, Complainant

KENOSHA UNIFIED SCHOOL DISTRICT, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a "Decision And Order On Appeal Of Preliminary Determination," and a "Decision And Order On Appeal Of Initial Determination," in this matter. Timely petitions for review were filed by the complainant.

The commission has considered the petitions and the positions of the parties, and it has reviewed the record which was before the ALJ. Based on its review, the commission agrees with the decisions of the ALJ, and it adopts the findings and conclusions in those decisions as its own.

The decisions of the administrative law judge (copies attached) are affirmed.

Dated and mailed January 15, 2015
sipprro_rsd : 110 :  716, 722

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

Procedural Facts - The complaint in this matter alleged that the respondent discriminated against the complainant because of her age in violation of the Wisconsin Fair Employment Act when it put her on a "performance improvement plan" in 2010, and when it put her on "administrative leave" in 2011.

An ERD investigator issued a Preliminary Determination under Wis. Adm. Code Ch. DWD § 218.05(2), dismissing the complaint in part, on the grounds that the performance improvement plan allegation was untimely under the 300-day statute of limitations. The investigator also separately issued an Initial Determination under Wis. Adm. Code Ch. DWD § 218.07(3), addressing the administrative leave allegation and dismissing the complaint on the grounds that there was no probable cause to find discrimination against the complainant regarding the administrative leave. This case involves an issue as to whether these determinations were timely appealed.

With respect to appeals of Preliminary Determinations, the ERD's rules provide:

Wis. Adm. Code Ch. DWD § 218.05 Preliminary review of complaints.
. . .
(3) Appeal of preliminary determination. The complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the preliminary determination . . .

With respect to appeals of Initial Determinations, the ERD's rules provide:

Wis. Adm. Code Ch. 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.

(3) Certification to hearing on issue of probable cause; right to stipulate that case be decided on merits. If a timely appeal is filed, the division shall issue a notice certifying the matter to hearing . . .

Both of these determinations were issued on the same day, July 30, 2014. The 20th day after that date was August 19, 2014, and the 30th day was August 29, 2014. However, no appeal of any kind was received by the ERD from the complainant by either of those dates. Then, on September 3, 2014, the ERD received two appeals from the complainant. One appeal concerned the performance improvement plan allegation and the related statute of limitations issue. The other appeal concerned the merits of the administrative leave allegation.

Both appeals contained the same introductory note which stated:

Ms. Sipprell spoke with [the ERD investigator] Ms. Vollrath-Sharkey in mid-July regarding the next steps involving her case. During this phone conversation, Ms. Vollrath-Sharkey informed Ms. Sipprell she was currently reviewing her case and stated the process could take approximately 30 days. Ms. Sipprell informed Ms. Vollrath-Sharkey she would be out of town during the month of August returning no later than September 1. Ms. Sipprell was not informed her absence may conflict with meeting the appeal deadline requirements.

The ERD then assigned an administrative law judge (ALJ) to review the situation. On November 4, 2014, the ALJ issued two decisions: a "Decision And Order On Appeal Of Preliminary Determination" and a "Decision And Order On Appeal Of Initial Determination." Each decision noted that the appeals they dealt with were untimely under the applicable appeal deadline, and each considered the complainant's explanation for why those appeals were late but concluded that the explanation was insufficient. The complainant filed petitions for review by the commission of the ALJ's decisions.
 

Discussion - The complainant's appeals of both the Preliminary Determination concerning the performance improvement plan allegation of her complaint, and the Initial Determination concerning the administrative leave allegation of that complaint, were untimely. The complainant makes assertions about why those appeals were untimely, but she does not dispute that they were untimely.

The ERD rule regarding appeals of preliminary determinations, DWD § 218.05(3), provides a procedure to be followed if a timely appeal of a preliminary determination is filed. However, it does not provide any procedure to be followed in a situation in which only an untimely appeal is filed. In particular, it does not provide any procedure for an ALJ to review such a situation and issue a decision concerning it, and in any event it does not provide any grounds or standard on the basis of which an ALJ conducting such a review could excuse the untimely filing of an appeal of a preliminary determination.

The ERD rule regarding appeals of initial determinations, DWD § 218.08, similarly provides a procedure to be followed if a timely appeal of an initial determination of no probable cause is filed but does not provide a procedure to be followed in a situation in which only an untimely appeal is filed. On the contrary, it expressly provides that if no timely appeal is filed, the initial determination's order of dismissal shall be the final determination of the department. It also does not in any event provide any grounds or standard on the basis of which the untimeliness of an appeal could be overlooked.

In Rivas v. City of Milw. Building Inspection, ERD Case No. 199601483 (LIRC, May 24, 1999), the commission noted that the ERD's rule regarding appeals of initial determinations

contain no exception for appeals that are only a few days late, nor is there an exception for appeals that are late due to compelling personal circumstances, even extremely tragic ones. . . Where the complainant failed to file a timely appeal of the determination in question, that determination must be considered the final determination of the department.

The same observation could be made as to the ERD's rule regarding appeals of preliminary determinations.

The commission recognizes, that it has indicated that there are some circumstances in which the fact that an appeal of a determination is untimely does not necessarily foreclose the possibility that the appeal could be addressed and ruled on. See, Carlson v. SPF North America, ERD Case No. CR200601472 (LIRC, Apr. 27, 2007). In Carlson, an appeal of an initial determination was filed several weeks late. An ALJ relied on the absence of any language in DWD § 218.08 permitting any exception to its application and dismissed the appeal. The commission set aside the administrative law judge's decision and remanded the matter for further proceedings.

However, the scope of the holding of Carlson must be understood in the light of its factual context. In Carlson, it was undisputed that the complainant literally did not receive the initial determination within the 30-day appeal period after it was mailed. The determination had been mailed to the last-known address of the complainant but was then returned to the ERD by the postal service, marked "return to sender" and "attempted-not known," one week later. The complainant did not even know it had been issued; it was not until some weeks later (after the appeal period had expired) that he telephoned the ERD to inquire about the status of his case and learned of the issuance of the initial determination. The commission's decision in Carlson does not make any definite finding as to why this non-delivery and return happened, but it appears that the commission accepted at least the possibility, that it was not the fault of the ERD or of the complainant.

The commission explained its rationale in Carlson this way:

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.

The question here is, whether the holding of Carlson extends to the situation of Ms. Sipprell. The commission finds that it does not.

The significant distinction between Sipprell's circumstances and those of Carlson, are that it was undisputed that Carlson actually did not receive the determination during the appeal period. Sipprell never asserted that she did not receive the determinations in the sense that Carlson did not receive his determination. Instead, hers appears to be a typical case in which someone is out of town when an item is mailed to them with the result that they do not see it until they get back to town.

In its interpretation and application of similar provisions in the Unemployment Insurance Act governing filing of appeals of determinations, the commission has long adhered to the view that a person who knows that a decision is going to be issued on their claim and who is planning to be away from home for a period of time is expected to take steps before they leave to deal with the possibility that the decision may be mailed to them during their absence. The commission believes this expectation is reasonable in similar contexts, and this case is one.
The only thing that distinguishes Sipprell's case from the situations in which someone leaves their home without making arrangements to enable a timely response to any time-sensitive mail, is her suggestion that she was misled by what the investigator said regarding when the decision might come out.

One possible view here, would be that the ERD investigator misled the complainant into assuming that the decision on her complaint would not be issued for 30 days and that the complainant would not put her ability to timely appeal in jeopardy by being away from town (and thus, presumably, not attending to her mail) until September 1. However, the commission does not find that view reasonable. There is ambiguity in the "could take approximately 30 days" statement that the complainant attributes to the investigator. There is more ambiguity in the asserted silence of the investigator in response to the complainant's statement about her plans.

In Rex Dieterle v. LIRC and Advanced Separation & Process Systems Inc., Case No. 03 CV 2720 (Wis. Cir. Ct., Dane Co., Feb. 23, 2004), a UI claimant had a conversation with a representative of the department who told him that the department "would spend some time" making the decision on his claim. The claimant then left town, making arrangements to have his mail held at the post office. When he returned, he found in his mail an initial determination on his UI claim, which had been issued more than 14 days before. The claimant argued that because the department had told him it would spend some time making the decision, it was reasonable for him to rely on that as an indication that he could leave his mail unattended for some time and the department should thus be considered estopped from asserting that his appeal should be dismissed. The court rejected this argument, stating that any reliance was unreasonable because "some time" was "about as vague as you can get." The commission believes that the same analysis is appropriate here. Even given that what Sipprell asserts happens, it was simply not reasonable of her to assume that she could in effect leave her mail unread and un-responded to for the entire month of August.  
 

Conclusion - Considering all of the circumstances, the commission is satisfied that Sipprell did have a reasonable opportunity, during the appeal period, to receive the determinations in this case, or to otherwise become aware of their existence. The fact that she did not see the determinations until she returned to town from her trip was not a result of any lack of reasonable opportunity to receive those determinations; it was a result of Sipprell's failure to make arrangements to enable her to learn about any time-sensitive mail she might receive during her absence from her home. For the foregoing reasons, the commission agrees with and affirms the ALJ's "Decision And Order On Appeal Of Preliminary Determination" and "Decision And Order On Appeal Of Initial Determination."

cc: Ronald S. Stadler, Attorney for Respondent

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