DEBORAH WILSON, Complainant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter on May 31, 2006, concluding there was no probable cause to believe the respondent had discriminated against the complainant because of race when it failed to permanently assign her to the position of Program Officer.

A Notice of Appeal Rights attached to the decision informed the parties that any party who was dissatisfied with the decision could file a written petition for review of the ALJ's decision by the commission and that the petition for review must be received by the ERD within 21 days from the date of the decision, or the decision would become final. This notice further informed the parties that the petition for review should be mailed or brought to the ERD at its Milwaukee or Madison address. Accordingly, the last day on which a timely petition for review could be received was June 21, 2006.

The complainant's letter petition is dated June 21, 2006, but it is stamped as having been received at the ERD at 8:13 a.m. on June 22, 2006. The complainant's petition has what is apparently a sticky note (yellow) with writing in black ink that reads, "Slipped under the door 6/21 SS". Also, written above the letter's June 21, 2006 date is the time, "5:00 pm", which is written in blue ink.

The commission is aware that the initials "SS" refer to ER Investigator Susan Swearingen. It is not clear who wrote the time "5:00 pm" above the letter's date, however, the color of this ink appears to be the same as that with which the complainant's signature on the letter petition is written.

Wisconsin Statute § 230.35(4)(f) provides that the offices of agencies of state government shall open at 7:45 a.m. and close at 4:30 p.m.

Evidently the complainant slid her letter petition under the door of the ERD's office after it had closed at 4:30 p.m. on June 21.

Wis. Stat. § 111.39(5) effectively provides that any party who is dissatisfied with the findings and order of the examiner (i.e., the ALJ) may file a written petition with the department within 21 days from the date that a copy of the examiner's findings and order is mailed.

Wis. Admin Code § DWD 218.21(2) provides that "The petition for review shall be filed within 21 days after the date that a copy of the administrative law judge's decision and order is mailed to the last known addresses of the parties...with the division's Madison or Milwaukee office."

DWD § 218.02(6) provides that "'Filing' means the physical receipt of a document."

Wis. Admin. Code § LIRC 4.01, the commission's rules governing equal rights cases, provides that petitions for commission review "shall be received within 21 days from the date of mailing of the findings and order to the parties by the equal rights division of the department" at the ERD in Milwaukee or the central administrative office of the ERD in Madison.

The commission concludes that the complainant's petition for review in this matter must be dismissed as untimely. The commission's jurisdiction is dependent on there being a written petition filed with the department within 21 days from the date that a copy of the ALJ's findings and order is mailed to the parties. Wis. Stat. § 111.39(5). Wis. Admin. Code § DWD 218.02(6) defines filing to mean the physical receipt of a document. The Notice of Appeal Rights attached to the ALJ's decision informed the complainant that any party who was dissatisfied with the decision could file a written petition for review of the ALJ's decision by the commission and that the petition for review must be received by the ERD within 21 days from the date of the decision. A petition for review cannot be filed with the division or physically received by the division if its office is closed. Furthermore, to find a complainant's after-hours delivery of his or her petition for review timely would be problematic because this would present the possibility where a party could deliver a petition for review to the division before business hours on the 22nd day from the date the ALJ's findings and order is mailed while claiming that it had been delivered on the 21st day.

The commission therefore issues the following:

The complainant's petition for review in this matter is dismissed as it was filed untimely.

Dated and mailed July 14, 2006
wilsode . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Leonard A. Tokus

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/07/17