Hasani Jackson, Complainant

Wal-Mart Stores, Inc., 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 considered the petition and the positions of the parties, and has reviewed the file.  Based on its review, the commission affirms the decision of the ALJ (copy attached).  Accordingly, the complaint in this matter is dismissed.

Dated and mailed June 29, 2016

722.1

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In November 2012, the complainant filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that the respondent had discriminated against him on the basis of race.  The charge was automatically filed with the state Equal Rights Division, but held in abeyance pending the outcome of the EEOC investigation.  In June 2013, the EEOC notified the complainant that it had closed its file, having been unable to conclude that the information it obtained established a violation.  The Equal Rights Division then conducted an independent investigation of the complainant's allegations of discrimination, and issued an Initial Determination on March 2, 2016, dismissing the complaint on the grounds that there was no probable cause to believe that the respondent had violated the Wisconsin Fair Employment Act (WFEA).

A complainant may appeal an unfavorable Initial Determination to the hearing section of the Equal Rights Division.  Appeals must be received within 30 days of the date of mailing of the Initial Determination.  If a timely appeal is filed, the case is certified for an evidentiary hearing before an ALJ on the question of whether there is probable cause to believe that a violation of the WFEA occurred.  If no timely appeal is filed, the Initial Determination is the final determination of the Department.  Wis. Admin. Code § DWD 218.08.

The complainant faxed an appeal of the Initial Determination to the Equal Rights Division's Milwaukee office on Friday April 1, 2016, which was the 30^th day after the date the Initial Determination was mailed.  The appeal was marked by the office fax machine as received at 4:50:13 p.m.  An ALJ determined that the appeal was not timely, and ruled that the Initial Determination was the final determination of the Equal Rights Division. 

The complainant's petition for commission review argues that the appeal should be considered timely because the instructions for appeal in the Initial Determination only stated that the appeal had to be received by the Equal Rights Division within 30 days of the date of mailing of the Initial Determination; it said nothing about a time deadline on the 30^th day.  The Initial Determination stated:

The dismissal will become final unless the Complainant submits a written appeal letter to the Equal Rights Division, 119 N. 6^th St. room 723, Milwaukee, Wisconsin 53203-1697.  The appeal letter must be received within 30 days of the date this determination was mailed.  (The DATE OF MAILING is stamped at the top of the Initial Determination)  In the appeal letter, the Complainant must state the specific reasons for appealing.

Administrative rules of the Department allow for the filing of documents with the Equal Rights Division by fax, but require the inclusion of a cover sheet and provide details regarding the determination of when a document is considered received:

DWD 218.25  Filing of documents by facsimile transmission or electronic mail.

(1)   Filing of documents by facsimile transmission.

Under § 230.35(4)(f), Wis. Stats., the division's regular business hours were from 7:45 a.m. to 4:30 p.m., and under § 230.35(4)(a), Wis. Stats., the division was closed Saturday and Sunday.  Its next business day after April 1 was April 4.  Applying the facts to the law, the filling date of the complainant's appeal was Monday, April 4, 2016.

The rules contain no exception for appeals that are filed after the deadline.  The commission allowed one exception when a representative of the division incorrectly informed a party that she had five more days to appeal than she actually had under the law, and the party filed a late appeal in reliance on that information.  Magnarini v. Joseph Reilly Co., ERD Case No. 8052083 (LIRC June 17, 1981).  Here, however, the notice in the complainant's Initial Determination that an appeal must be received within 30 days was not incorrect.  It was incumbent on the complainant to ascertain how the 30-day deadline applied depending on the filing method he chose.  If he had chosen to file his appeal in person on April 1, he would have been responsible for knowing the time the office closed in order to ensure that the appeal would be received that day; so too, he needed to know the rules governing filing by fax.

The commission therefore agrees with the ruling of the ALJ that the complainant's appeal of the Initial Determination was untimely, making the Initial Determination the final determination of the division.

cc: Attorney Jayme Smoot

uploaded 2017/01/18

(1)( Back )  Appeal Rights: See the Green Enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission's website http://lirc.wisconsin.gov.