Jeffrey L. Shorey, Complainant
Dillon Bindery, Inc., Respondent
The decision of the
administrative law judge is set aside,
and the matter is remanded for a
hearing before a different administrative law judge with regard to the
timeliness of the complainant's appeal of the initial determination and for such
further proceedings as warranted.
Dated and mailed October 31, 2016
722.1
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Procedural History
On December 10, 2015, the
Equal Rights Division (hereinafter “Division”) issued an initial determination
finding no probable cause to believe that the complainant was discriminated
against by the respondent based upon disability.
The complainant was notified that his appeal must be received in 30 days.
The department closed the case on January 11, 2016, because no appeal was
filed.
On March 23, 2016, the
complainant's attorney, Scott Luzi, sent a letter to Larry Jakubowski, the Civil
Rights Bureau Director, explaining that he had filed an appeal on December 16,
2015. Mr. Luzi attached a copy of a
letter dated December 16, 2015, which he claimed was mailed on that date.
In his letter, Mr. Luzi stated that he spoke with a representative of the
Division on March 21, 2015, who informed him the matter had been closed because
no appeal was filed and explained that he could write a letter to Mr. Jakubowski.
Mr. Luzi did so.
The matter was assigned to an
administrative law judge, who dismissed the complaint without hearing.
In her dismissal decision, the administrative law judge noted that there
is no statutory exception allowing the Division to accept late appeals of
initial determinations. The
administrative law judge observed that there may have been an error in
addressing the appeal tribunal letter by someone at the complainant's attorney's
law firm, or a miscommunication between staff at the law firm and, further, that
if the Division were to accept every late appeal in which it was asserted that
an appeal was sent timely, the statutory requirement would be rendered
meaningless. The complainant has
petitioned for commission review of the administrative law judge's decision to
dismiss his appeal.
Memorandum
Opinion
Wisconsin Admin. Code, § DWD
218.08, controls the appeal of no probable cause determinations and provides as
follows:
(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.
The request for hearing shall state specifically the grounds upon which
the appeal is based. The department
shall notify the respondent that an appeal has been filed within 10 days of
receiving the appeal.
(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.
Section DWD 218.02 of the
administrative code provides definitions for terms used in chapter 218, and
states as follows:
(6) “Filing” means the physical receipt
of a document.
The complainant in this case
is arguing that he mailed a letter of appeal in a timely fashion and that, if
the Division did not receive it--either
because it was lost in the mail or lost by the Division--this constituted a “logistical oddity”
that should not prevent his case from being heard.
The rule providing
that appeals of initial determinations must be filed within 30 days after the
determination is issued states that if no timely appeal is filed the initial
determination's order of dismissal shall be the final determination of the
department. The rule does not set
forth any grounds or standards based on which an untimely appeal could be
overlooked. The commission has,
however, recognized 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.
In
Carlson v. SPF North America, ERD Case No. CR200601472
(LIRC April 27, 2007), the commission noted that a literal and mechanical
application of Wis. Adm. Code § DWD 218.08 could lead to absurd results, such as
the dismissal of an appeal where the complainant never received a copy of the
initial determination due to an error or oversight by the department in the
addressing or mailing of the determination. Applying
that logic to the instant case, the commission takes the view that dismissal of
an appeal on timeliness grounds where a complainant has mailed an appeal through
the United States Postal Service with ample time to ensure its timely receipt,
but due to an error or other unusual circumstances beyond the control of the
complainant the letter was not received, would also be an absurd result.
The commission does not believe the rule contemplates dismissal of a
complaint under such circumstances.
In this case, the
complainant's attorney has provided a signed affidavit indicating that the
appeal was mailed in a timely manner.
While the affidavit lacks detail about the mailing of the document, there
is no reason to assume that the assertion that the letter was properly addressed
and mailed on December 16, 2015 is incredible.
In the decision dismissing the appeal, the administrative law judge noted
that there may have been an error in addressing the appeal letter by someone at
the complainant's attorney's law firm, or a miscommunication between staff at
the law firm. However, this is mere
speculation, which ignores the real possibility that the letter was properly
addressed and placed into the postal stream, but that it was lost by the postal
service or misplaced by the Division.
This matter is therefore
remanded for a hearing to give the complainant an opportunity to establish that
his appeal was properly addressed and that it was mailed in a timely fashion.
If the complainant succeeds in making that showing,
through the credible testimony of a
witness with firsthand knowledge of the mailing of the appeal, he should be
entitled to a hearing on probable cause.
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