DALE KENNETH STEFFEN, Complainant

MB CO, 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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The issue is whether the complainant's appeal of the no probable cause initial determination in this matter was timely filed and, if not, whether his charge of discrimination should be dismissed as a result.

Wisconsin Administrative Code § DWD 218.08 provides as follows, as relevant here:

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.

Wisconsin Administrative Code § DWD 218.02(6) provides that "filing" means the physical receipt of a document.

The complainant's charge of discrimination was dated and signed by him on September 13, 2005. The envelope in which it was mailed is addressed in three lines only to the Equal Rights Division at PO Box 8928, Madison WI 53708, and contains no other handwriting; and bears a Milwaukee postmark of September 13, 2005, PM. The code printed on this envelope by the postal service is 53708-8928. The Equal Rights Division's (ERD) date stamp indicates that it was received on September 14, 2005, the day after its Milwaukee postmark, at 9:56 a.m. September 13, 2005, was a Tuesday.

The complainant mailed certain information to the ERD investigator. His cover letter accompanying this information was dated December 26, 2005. The envelope in which this information was mailed is addressed to the investigator at the Department of Workforce Development, 201 E. Washington Ave. Rm A300, Madison WI 53708-8928, and contains no other handwriting; and bears a Milwaukee postmark of December 27, 2005, PM. The Equal Rights Division's date stamp indicates that it was received on December 28, 2005, the day after its Milwaukee postmark, at 1:22 p.m. December 27, 2005, was a Tuesday.

On April 14, 2006, ERD issued an initial determination of no probable cause. Since the 30th day here fell on a Sunday, the last day to file a timely appeal would have been Monday, May 15, 2006.

The complainant's appeal of this no probable cause initial determination was dated May 10, 2006. The complainant contends that he mailed his appeal from New Holstein, Wisconsin, on May 10, 2006. The envelope in which it was mailed is addressed in five lines as follows:

Equal Rights Division
PO Box 8928
201 East Washington Ave
Room A300
Madison WI 53708-8928

This envelope bears a Milwaukee postmark of May 11, 2006, PM. May 11 was a Thursday. The code printed on the envelope by the postal service is 53703-2866 0019. The postal service web site (http://zip4.usps.com/zip4/welcome.jsp) indicates that this is the nine-digit zip code, and carrier code, for the building located at 201 East Washington Avenue in Madison, Wisconsin. This envelope also contains handwriting stating "DWD" above the address written by the complainant, and "Inter-D-mail" to the left of this address. This handwriting could not have been the complainant's since the statements would necessarily have been written by an individual associated with an agency within the state inter-departmental mail system. ERD's date stamp indicates that it was received on May 16, 2006, at 10:57 a.m. May 16 was a Tuesday.

The Department of Workforce Development (DWD) is the occupant of the building located at 201 East Washington Ave in Madison, Wisconsin.

On June 14, 2006, the respondent filed a motion to dismiss the complainant's charge based on his failure to file a timely appeal of the initial determination. In a decision dated August 24, 2006, an ERD administrative law judge granted the respondent's motion to dismiss, and dismissed the complainant's charge of discrimination.

The most plausible scenario, given the facts drawn from the file in this matter, applying the presumption that mail addressed and posted is delivered to the stated address, and taking into account the delivery code printed on the envelope, is that the complainant's appeal was delivered to the street address stated on the envelope, i.e., 201 East Washington Avenue in Madison; it was received at that address by a unit of DWD other than the Equal Rights Division; staff of this other DWD unit placed the appeal in the inter-departmental mail to be delivered to ERD; and use of the inter-departmental mail, a mail processing and delivering system separate and apart from the postal service, caused the appeal to be delivered to ERD on the third business day after it was postmarked in Milwaukee rather than the first business day, as had been typical of previous correspondence in this matter.

It is reasonable to conclude from these facts that the complainant's appeal was delivered to the other unit at DWD no later than Monday, May 15, 2006, the appeal deadline.

Wisconsin Administrative Code § DWD 218.08(1) which governs the filing of appeals of no probable cause determinations does not specify whether such an appeal must be filed with ERD or DWD. In fact, Wis. Adm. Code § DWD 218.08 refers to "department," not "division," in its provisions.

As a result, the commission concludes that the receipt of the complainant's appeal by a unit of DWD on or before May 15, 2006, satisfied the timely filing requirement of Wis. Adm. Code § 218.08.

The commission notes that neither party requested a hearing on the respondent's motion to dismiss. Moreover, the commission is convinced that, since it would be difficult, if not impossible, for the complainant, who has the burden of proof, to discover the manner in which this single piece of mail was handled more than four months ago, the identify of those handling it, and the timing of this handling, the most that could be accomplished through hearing would be to establish facts which are already undisputed.

The decision of the administrative law judge is reversed. Accordingly, the respondent's motion to dismiss is denied, and this matter is remanded to ERD for further proceedings consistent with this decision.

Dated and mailed October 13, 2006
steffda . urr : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

cc: Attorney Heather M. Tiltmann

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uploaded 2006/10/16