State of Wisconsin

Labor and Industry Review Commission

Kim Glass, Complainant 1309 Grand Ave. Janesville, WI  53546	Fair Employment Decision[1]
FF Mark of Wisconsin,  Respondent 11352 State Road 59 Evansville, WI  53536
	Dated and Mailed:
ERD Case No. CR201700116	December 11, 2018
	glasski_rsd.doc:164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/
	David B. Falstad, Commissioner

Procedural Posture

On January 11, 2017, the complainant filed a complaint of discrimination with the Equal Rights Division (hereinafter “Division”) of the Department of Workforce Development.  On October 23, 2017, an Equal Rights Officer with the Division issued a preliminary determination dismissing the complainant’s complaint for failure to name a respondent that was subject to the Wisconsin Fair Employment Act.  The initial determination provided the following instruction with respect to appeals:

THE NEXT STEP IS:

The dismissal will become final unless written appeal is received by the Equal Rights Division, P.O. Box 8928, Madison, Wisconsin 53708, within 20 days of the date this determination was mailed.  (The DATE OF MAILING is stamped at the top of the Preliminary Determination.) 

Because the preliminary determination was issued on October 23, 2017, the last day on which an appeal could have been filed was November 12, 2017. 

The complainant filed an appeal of the preliminary determination on June 21, 2018, and on July 17, 2018, an administrative law judge for the Division issued a decision dismissing the appeal based upon timeliness.  The complainant filed a timely petition for commission review of the dismissal of her appeal. 

Memorandum Opinion

In her petition for commission review the complainant states that she feels she was not heard and wants a fair chance to represent herself and an opportunity to prove that she was subjected to sexual harassment.  However, if the complainant wanted an opportunity to be heard, her recourse was to file a timely appeal of the preliminary determination that dismissed her complaint for lack of jurisdiction over the named respondent.  The complainant did not do so, and the commission is without authority to accept the complainant’s untimely appeal.

The Division has rules with respect to preliminary determinations which provide, in relevant part:

“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. . . .” 

Wis. Admin. Code ch. DWD § 218.05(3).

The complainant’s appeal of the preliminary determination was filed more than 20 days after the date on which the determination was issued.  The law does not provide any exception allowing late appeals of preliminary determinations to be considered, even where the appeal is late for good cause or due to compelling personal circumstances.  Nemec v. School District of Washburn, ERD Case No. 201103604 (LIRC Jan. 30, 2014); Anderson v. Labor Ready Midwest, ERD Case No. CR201701984 (LIRC Dec. 14, 2017).  Consequently, the complainant’s late appeal of the preliminary determination was properly dismissed, and the determination remains in effect.

NOTE:     In her decision the administrative law judge explored the reasons the complainant provided for filing her appeal late and found that, while the complainant had health issues, she was well enough to repeatedly attempt to contact her attorney before the appeal deadline expired and that she was not justified in assuming her attorney had filed an appeal on her behalf.  The administrative law judge also noted that the actions of a party’s attorney, even if erroneous, are imputed to the party.  The administrative law judge concluded that, while the complainant’s attorney’s failure to file an appeal was regrettable, “that inaction by her attorney does not justify disregarding the legal requirement that an appeal of a preliminary determination be filed within 20 days of the date of the order.”  The administrative law judge’s analysis is flawed.  As stated above, the law does not provide any exception allowing late appeals of preliminary determinations, even where there is good cause or compelling personal circumstances.  Consequently, the resolution of this matter did not depend on a conclusion that the complainant was in good enough health to file an appeal, that she was not justified in assuming her attorney had filed an appeal on her behalf, or that the complainant must take responsibility for her attorney’s actions in failing to file an appeal on her behalf--none of those matters had any effect on the decision that the complainant’s appeal was late and that dismissal was therefore required. 

cc: Bryan Whitehead

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[1] 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.